United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney, Chief 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.
April 26, 2013, pro se Petitioner Franklin Robbs pled guilty
in this Court, pursuant to a written agreement, to conspiracy
to commit racketeering, in violation of 18 U.S.C. §
1962(d). (Crim. Case No. 3:12-cr-188-FDW-21, Doc. No. 460:
Acceptance and Entry of Guilty Plea). This Court subsequently
sentenced Petitioner to 132 months in prison. (Id.,
Doc. No. 875: Amended Judgment).
6, 2016, Petitioner filed a motion to vacate his sentence
under 28 U.S.C. § 2255. (Id., Doc. No. 1056).
On September 21, 2017, this Court denied and dismissed the
motion to vacate with prejudice on the merits and as
time-barred as to some of his claims. (Id., Doc. No.
1085). Petitioner filed the instant motion to vacate on
August 11, 2017. In the pending motion, Petitioner seeks to
have this Court correct its judgment to reflect this
Court's alleged statement at sentencing that Petitioner
should be given credit for time-served during the 712 days
that he was incarcerated in the Mecklenburg County Detention
Center (from June 6, 2012, to May 19, 2014), before he began
serving his federal sentence. (Id., Doc. No. 1080 at
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 11, 2017,
seeking to have this Court “correct” his judgment
to reflect that he should be credited with time-served in the
Mecklenburg County Detention Center before he began serving
his federal sentence. Petitioner filed a previous motion to
vacate the same conviction and sentence, and this Court
denied the motion to vacate. 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 he 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
event, this Court notes that Petitioner has already filed a
motion in his underlying criminal action, in which he sought
the same relief he seeks here, and this Court has already
denied the motion. See (Crim. Case No.
3:12-cr-188-FDW-21, Doc. No. 1055, Doc. Entry Dated July 7,
2016). Thus, to the extent that Petitioner intended to bring
this action as a motion in his underlying criminal action,
and not as a Section 2255 action, the motion is denied for
the same reasons that the Court denied his previous motion.
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. Alternatively, his
motion seeking for this Court to correct the judgment to
reflect time-served has already been denied in
Petitioner's underlying criminal action, and it is
IS, THEREFORE, ORDERED that:
Petitioner's Motion to Vacate, (Doc. No. 1), is