United States District Court, W.D. North Carolina, Charlotte Division
J. Conrad, Jr. United States District Judge
MATTER is before the Court on Petitioner's
Motion to Vacate, Set Aside or Correct Sentence under 28
U.S.C. § 2255, (Doc. No. 1).
pled guilty in the underlying criminal case to carjacking and
possession of a firearm by a convicted felon and was
sentenced to 180 months' imprisonment for the carjacking
and 288 months for the firearm possession, concurrent.
(3:06-cr-383, Doc. No. 21).The Fourth Circuit Court of
Appeals dismissed Petitioner's direct appeal due to his
knowing and voluntary appellate waiver. (3:06-cr-383, Doc.
No. 30). Petitioner filed an untimely certiorari petition
that the United States Supreme Court denied. Smith v.
United States, 557 U.S. 927 (2009).
18, 2010, Petitioner filed a § 2255 Motion to Vacate
that the Court dismissed as untimely, case number
3:10-cv-227-RJC. Smith v. United States, 2013 WL
2480653 (W.D. N.C. June 10, 2013). The Fourth Circuit denied
a certificate of appealability and dismissed Petitioner's
appeal. United States v. Smith, 571 Fed.Appx. 196
(4th Cir. 2014).
16, 2014, Petitioner filed a second § 2255 Motion to
Vacate that the Court dismissed as an unauthorized second or
successive petition pursuant to 28 U.S.C. §
2244(b)(3)(A), case number 3:14-cv-316-RJC. Smith v.
United States, 2015 WL 8373788 (W.D. N.C. Dec. 8, 2015).
filed the instant § 2255 Motion to Vacate, his third, on
May 11, 2017. (Doc. No. 1).
STANDARD OF REVIEW
to 28 U.S.C. § 2255, a prisoner in federal custody may
move the court which imposed his sentence to vacate, set
aside, or correct the sentence if it was imposed in violation
of federal constitutional or statutory law, was imposed
without proper jurisdiction, is in excess of the maximum
authorized by law, or is otherwise subject to collateral
attack. 28 U.S.C. § 2255(a). However, “[a] second
or successive motion must be certified...by a panel of the
appropriate court of appeals to contain” either:
(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).
court of appeals may authorize the filing of a second or
successive application only if it determines that the
application makes a prima facie showing that the application
satisfies the requirements of this subsection.” 28
U.S.C. § 2244(b)(3)(C). In the absence of pre-filing
authorization, a district court lacks jurisdiction to
consider an application containing abusive or repetitive
claims. United States v. Winestock, 340 F.3d 200,
205 (4th Cir. 2003).
4(b) of the Rules Governing Section 2255 Proceedings provides
that courts are to promptly examine motions to vacate, along
with “any attached exhibits and the record of prior
proceedings . . .” in order to determine whether the
petitioner is entitled to any relief on the claims set forth
therein. After examining the record in this matter, the Court
finds that the argument presented by the Petitioner can be