United States District Court, W.D. North Carolina, Asheville Division
REIDINGER UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on the Defendant's
“Motion to Revisit Previous Motion 750 Amendment
Denying Request for Reduction of Crack-Sentence Nunc Pro
Tunc” [Doc. 865].
present motion, the Defendant seeks reconsideration of the
determination that the Defendant was not entitled to relief
pursuant to 18 U.S.C. § 3582 and Amendment 750. [Doc.
865]. No motion, however, was filed on behalf of the
Defendant pursuant to § 3582 seeking any relief based on
Amendment 750. The determination that the Defendant
challenges was not made by the Court but rather by the
Federal Defenders, who were appointed to review the
Defendant's case and determine whether he was eligible
for a sentence reduction under Amendment 750. The Federal
Defenders determined that the Defendant was not eligible for
any reduction, given his status as a career offender. [Doc.
666]. The Defendant now takes issue with that determination,
arguing that the Court erred in designating him as a
career offender and thus denying him relief under Amendment
750. The Court, however, never denied the Defendant relief
under Amendment 750 because no motion for a sentence
reduction under that provision was ever filed. The
Defendant's motion for reconsideration of the Court's
determination that he was not eligible for relief under
Amendment 750, therefore, is denied.
extent that the Defendant now seeks relief under Amendment
750, his motion must be denied. Because the Defendant's
Guidelines range was determined by his status as a career
offender [Doc. 338 at 9], Amendment 750 is not applicable to
extent that the Defendant challenges his designation as a
career offender, his motion also must be denied. In
challenging his designation as a career offender, the
Defendant is attacking the same criminal judgment that he
challenged in his prior motion to vacate under 28 U.S.C.
§ 2255. See United States v. Winestock, 340
F.3d 200, 207 (4th Cir. 2003) (noting that
“new legal arguments or proffers of additional evidence
will usually signify that the prisoner is . . . continuing
his collateral attack on his conviction or sentence”).
The Antiterrorism and Effective Death Penalty Act (AEDPA)
provides, in relevant part, that “[a] second or
successive motion [under Section 2255] must be certified as
provided in Section 2244 by a panel of the appropriate court
of appeals to contain -
(1) newly discovered evidence that, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense;
(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
28 U.S.C. § 2255(h). The Defendant previously filed a
motion to vacate pursuant to 28 U.S.C. § 2255, which was
denied and dismissed. The Defendant has provided no evidence
that he has secured the necessary authorization from the
Fourth Circuit to proceed with a successive § 2255
motion on this issue. This Court is therefore without
jurisdiction to consider a successive petition under §
2255. See In re Vial, 115 F.3d 1192, 1194-95
(4th Cir. 1997) (en banc).
foregoing reasons, the Defendant's motion is denied.
Further, pursuant to Rule 11(a) of the Rules Governing
Section 2255 Cases, the Court declines to issue a certificate
of appealability as the Defendant has not made a substantial
showing of a denial of a constitutional right. 28 U.S.C.
§ 2253(c)(2); Miller-El v. Cockrell, 537 U.S.
322, 336-38 (2003) (in order to satisfy § 2253(c), a
petitioner must demonstrate that reasonable jurists would
find the district court's assessment of the
constitutional claims debatable or wrong); Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (holding that when
relief is denied on procedural grounds, a petitioner must
establish both that the correctness of the dispositive
procedural ruling is debatable, and that the petition states
a debatably valid claim of the denial of a constitutional
THEREFORE, ORDERED that the Defendant's “Motion to
Revisit Previous Motion 750 Amendment Denying Request for
Reduction of Crack-Sentence Nunc Pro Tunc” [Doc. 865]
FURTHER ORDERED that pursuant to Rule 11(a) of the Rules
Governing Section 2255 Cases, the Court declines to issue a
certificate of appealability.