United States District Court, W.D. North Carolina, Statesville Division
Richard L. Voorhees United States District Judge.
MATTER is before the Court on Petitioner's
Motion to Vacate, Set Aside, or Correct Sentence filed under
28 U.S.C. § 2255. (Doc. No. 1). For the reasons that
follow, the Court finds that this is an unauthorized,
successive petition, and the Court therefore dismisses the
Motion to Vacate.
February 29, 2016, pro se Petitioner Lindsey Jordan Price
pled guilty in this Court, pursuant to a written agreement,
to conspiracy to traffic methamphetamine, in violation of 21
U.S.C. §§ 841(a)(1) and 846 (Count One). (Crim.
Case No. 5:15-cr-46-RLV-DSC-2, Doc. No. 21: Plea Agreement;
Doc. No. 33: Acceptance and Entry of Guilty Plea). After
receiving a downward departure under U.S.S.G. § 5K1.1,
Petitioner was subsequently sentenced to 63 months of
imprisonment, and she did not appeal. (Id., Doc. No.
52: Judgment). On October 17, 2016, Petitioner filed a motion
to vacate her sentence under 28 U.S.C. § 2255.
(Id., Doc. No. 54: Civ. No. 5:16cv190). On November
1, 2016, this Court denied and dismissed the motion to vacate
with prejudice on the merits. (Id., Doc. No. 55).
Petitioner filed the instant motion to vacate on August 22,
2017, placing the petition in the prison mailing system on
August 2, 2017. In her pending motion, Petitioner contends
that her attorney “failed to object to, and correct,
the application of an enhancement to my sentencing
guidelines” as to the two-level enhancement that she
received at sentencing for firearms possession, under
U.S.S.G. § 2D1.1(b)(1). (Civ. Doc. No. 1 at 4).
STANDARD OF REVIEW
to Rule 4(b) of the Rules Governing Section 2255 Proceedings,
sentencing courts are directed to promptly examine motions to
vacate, along with “any attached exhibits and the
record of prior proceedings” in order to determine
whether a petitioner is entitled to any relief. After having
considered the record in this matter, the Court finds that no
response is necessary from the United States. Further, the
Court finds that this matter can be resolved without an
evidentiary hearing. See Raines v. United States,
423 F.2d 526, 529 (4th Cir. 1970).
filed the instant motion to vacate on August 2, 2017, seeking
to have the Court vacate her conviction and sentence in
Criminal Case No. 5:15-cr-46-RLV-DSC-2. Petitioner filed a
previous motion to vacate the same conviction and sentence,
and this Court denied the motion to vacate as time-barred.
Thus, this is a successive petition. Pursuant to 28 U.S.C.
§ 2244(b)(3)(A), “[b]efore a second or successive
application permitted by this section is filed in the
district court, the applicant shall move in the appropriate
court of appeals for an order authorizing the district court
to consider the application.” Petitioner has not shown
that she has obtained the permission of the Fourth Circuit
Court of Appeals to file a successive petition. See
also 28 U.S.C. § 2255(h) (stating that “[a]
second or successive motion must be certified as provided in
section 2244 by a panel of the appropriate court of
appeals”). Accordingly, this successive petition must
be dismissed. See Burton v. Stewart, 549 U.S. 147,
153 (2007) (holding that failure of petitioner to obtain
authorization to file a “second or successive”
petition deprived the district court of jurisdiction to
consider the second or successive petition “in the
Court notes that, in her present petition, Petitioner argues
that her first petition, in which she requested a minor role
reduction in her sentence under Amendment 794 to the United
States Sentencing Guidelines, “should not have been
filed as a habeas petition, as it sought non-habeas
relief.” (Civ. Doc. No. 1 at 2). In other words,
Petitioner appears to be arguing that, before this Court
construed her first filing as a motion to vacate under 28
U.S.C. § 2255, this Court should have first given her a
warning pursuant to Castro v. United States, in
which the Supreme Court held that before
“characterizing as a first § 2255 motion a pro se
litigant's filing that did not previously bear that
label, ” a district court must first give notice
to the petitioner that the court intends to construe the
filing as a motion under Section 2255, thereby giving the
litigant an opportunity to contest the recharacterization, or
withdraw or amend the motion. 540 U.S. 375, 382 (2003)
was not entitled to a Castro warning before this
Court construed her first filing as a Section 2255 petition.
Here, although Petitioner sought a reduction in sentencing
under Amendment 794 in her first filing, her first filing was
clearly designated in the caption as a “Motion to
Vacate, Set Aside or Correct Sentence under 28 U.S.C.
2255-Motion for Minimal or Minor Role under Amendment
794.” (Civ. No. 5:16cv190-RLV, Doc. No. 1 at 1).
Furthermore, Petitioner stated in the text of her filing that
she sought “a resentencing on her 2255 Motion.”
(Id. at 2). Thus, Petitioner's filing clearly
bore the label and was characterized by Petitioner herself as
a Section 2255 motion. Castro therefore does not
apply to Petitioner. Accord In re Platts, 551 F.
App'x 26, 26 n.1 (3d Cir. 2014) (“[Petitioner]
expressly captioned his § 2255 motion as a § 2255
motion, so Castro does not apply to him.”);
Orr v. United States, No. 1:03CR35-M, 2008 WL
4186935, at *2 (N.D. Miss. Sept. 8, 2008) (“As
[Petitioner] unequivocally characterized each motion as the
type seeking relief under 28 U.S.C. § 2255, the rule set
forth in Castro does not apply to this
event, even assuming that this is Petitioner's
first-filed petition for purposes of successive petitions
under Section 2255, Petitioner is not entitled to relief on
the merits. Here, Petitioner is challenging her two-level
firearms enhancement under U.S.S.G. § 2D1.1(b)(1). As
the Fourth Circuit has held, however, a “misapplication
of the sentencing guidelines does not amount to” the
kind of “miscarriage of justice” required for a
non-constitutional error to be cognizable on collateral
review. United States v. Foote, 784 F.3d 931, 935-36
(4th Cir. 2015). Thus, even if the Court were to address the
merits of the petition, it would be dismissed for failure to
state a cognizable claim under Section 2255.
foregoing reasons, the Court will dismiss Petitioner's
Section 2255 Motion to Vacate for lack of jurisdiction
because the motion is a successive petition and Petitioner
has not first obtained permission from the Fourth Circuit
Court of Appeals to file the motion.