United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
Reidinger 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. 1].
2009, pro se Petitioner Larry Michael Copeland pled
guilty in three criminal actions, which were consolidated for
sentencing. Criminal Case Nos. 1:08-cr-00082 (W.D. N.C. ),
1:09-cr-00055 (M.D. N.C. ), and 1:09-cr-00058 (D.S.C.).
Specifically, Petitioner plead guilty to (1) bank robbery and
aiding and abetting such, in violation of 18 U.S.C.
§§ 2113(a) and 2 (Count One, in 1:08-cr-00082); (2)
possession of a firearm in relation to a crime of violence,
in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (Count
Three, in 1:08-cr-00082); (3) bank robbery and aiding and
abetting such, in violation of 18 U.S.C. §§ 2113(a)
and 2 (Count One, in 1:09-cr-00055); and (4) bank robbery, in
violation of 18 U.S.C. § 2113(a) (Count One, in
1:09-cr-00058). [See Crim. No. 1:08-cr-82-MR-2
(“CR”), Doc. 99: Judgment].
8, 2010, this Court sentenced Petitioner to a term of 136
months on Count One in each of Criminal Case Nos.
1:08-cr-00082, 1:09-cr-00055, and 1:09-cr-00058, to be served
concurrently; and to a term of 84 months on Count Three of
Criminal Case No. 1:08-cr-00082, to be served consecutively
to the term imposed in Count One of Criminal Case Nos.
1:08-cr-00082, 1:09-cr-00055, and 1:09-cr-00058, for a total
term of 220 months' imprisonment. [Id.].
Petitioner did not appeal.
filed a motion to vacate on June 27, 2016, seeking sentencing
relief under Johnson v. United States, 135 S.Ct.
2551 (2015). [Civil Case No. 1:16-cv-00224, Doc. 1].
Specifically, Petitioner contended that his “conviction
and resulting 84 month consecutive sentence for possession of
a firearm in relation to a crime of violence . . . should be
vacated in light of [the] rule announced in
[Johnson] where the definition of crime of violence
contained in Section 924(cA)(3)(B) is unconstitutionally
vague in violation of due process.” [Id. at
22]. This Court denied Petitioner's motion to vacate on
the merits on October 7, 2016. [Id., Doc. 6].
filed the instant motion to vacate on November 30, 2017,
asserting a claim of ineffective assistance of counsel based
on counsel's alleged failure to file objections to the
PSR with respect to certain sentencing enhancements that were
recommended based on Petitioner's prior convictions.
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).
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.” Thus,
Petitioner must first obtain an order from the United States
Court of Appeals for the Fourth Circuit before this Court
will consider any successive petition under 28 U.S.C. §
2255. Petitioner has not shown that he has obtained the
permission of the United States Court of Appeals for the
Fourth Circuit to file a successive petition. See
also 28 U.S.C. § 2255(h) (“[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
reasons stated herein, Petitioner's motion to vacate is
dismissed as successive.
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. McDaniel, 529 U.S. 473, 484
(2000) (when relief is denied on procedural grounds, a
petitioner must ...