United States District Court, W.D. North Carolina, Charlotte Division
C. Mullen 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).
found Petitioner guilty in the underlying criminal case of:
Count (1), conspiracy to possess with intent to distribute
marijuana and cocaine; Count (2), possession with intent to
distribute marijuana and aiding and abetting others; and
Count (5), using and carrying a firearm during and in
relation to a drug trafficking crime. (3:03-cr-231, Doc. No.
597). The Court sentenced him to a total of 352 months'
imprisonment: 240 months for Count (1), 250 months for Count
(2), concurrent, and 60 months as to Count (5), consecutive.
(Id.). The Fourth Circuit Court of Appeals affirmed,
United States v. Barragan, 222 Fed.Appx. 257
(4th Cir. 2007), and the United States Supreme
Court denied certiorari, Barragan v. United States,
552 U.S. 939 (2007).
September 16, 2008, Petitioner filed a § 2255 Motion to
Vacate and supplement that the Court denied on the merits,
case number 3:08-cv-425. Barragan v. United States,
2011 WL 159580 (W.D. N.C. Jan 18, 2011). The Fourth Circuit
denied a certificate of appealability and dismissed the
appeal. United States v. Barragan, 462 Fed.Appx. 338
(4th Cir. 2012).
January 13, 2016, the Court granted Petitioner's Motion
for Sentence Reduction under 18 U.S.C. § 3582(c)(2)
pursuant to Amendment 782 of the United States Sentencing
Guidelines, and reduced his total sentence to 295 months'
imprisonment. (3:03-cr-231, Doc. No. 738).
filed the instant § 2255 Motion to Vacate, his second,
on July 24, 2017. He argues that his sentence should be
reviewed in light of Johnson v. United States, 135
S.Ct. 2551 (2015), and Dean v. United States, 137
S.Ct. 1170 (2017).
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