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
was convicted after a jury trial in this Court of various
counts of money laundering and conspiracy to commit money
laundering, in violation of 18 U.S.C. § 1956.
See (Crim. Case No. 3:00-cr-08-FDW-7, Doc. No. 239:
Judgment). This Court subsequently sentenced Petitioner to a
total of 293 months in prison. (Id.).
October 25, 2002, Petitioner filed a motion to vacate her
sentence under 28 U.S.C. § 2255. (Id., Doc. No.
290). On December 10, 2002, this Court denied and dismissed
the motion to vacate as time-barred and on the merits.
(Id., Doc. No. 292). Petitioner filed the instant
action on October 17, 2017, asking for this Court to vacate,
reduce, or correct her sentence on several grounds.
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 October 17, 2017,
seeking to have this Court vacate, reduce, or correct her
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 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 first place”).
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.
IS, THEREFORE, ORDERED that:
Petitioner's Motion to Vacate, (Doc. No. 1), is
DISMISSED as a successive petition.
IT IS FURTHER ORDERED that pursuant to Rule
11(a) of the Rules Governing Section 2254 and Section 2255
Cases, this Court declines to issue a certificate of
appealability. See 28 U.S.C. § 2253(c)(2);
Miller-El v. Cockrell, 537 U.S. 322, 338 (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. McDaniel529 U.S. 473, 484
(2000) (when relief is denied on procedural grounds, a
petitioner must ...