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Smith v. United States

United States District Court, W.D. North Carolina, Charlotte Division

April 21, 2018

JASON MILTON SMITH, JR., Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Robert J. Conrad, Jr. United States District Judge

         THIS 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).

         I. BACKGROUND

         Petitioner 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).

         On May 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).

         On June 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).

         Petitioner filed the instant § 2255 Motion to Vacate, his third, on May 11, 2017. (Doc. No. 1).

         II. STANDARD OF REVIEW

         Pursuant 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; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

28 U.S.C. § 2255(h).

         “The 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).

         Rule 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 ...


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