United States District Court, W.D. North Carolina, Statesville Division
D. WHITNEY CHIEF 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).
was found guilty by a jury of conspiracy to possess with
intent to distribute cocaine and cocaine base, and possession
with intent to distribute cocaine base. (5:03-cr-12, Doc. No.
234). The court sentenced him to life imprisonment for the
conspiracy and 360 months, concurrent, for the possession,
followed by 10 years of supervised release. (5:03-cr-12, Doc.
No. 279). The Fourth Circuit Court of Appeals affirmed his
convictions and sentence, United States v. Smith,
451 F.3d 209 (4th Cir. 2006), and the United
States Supreme Court denied certiorari, Smith v. United
States, 549 U.S. 892 (2006).
filed a § 2255 Motion to Vacate on October 15, 2007,
case number 5:07-cv- 115. After considering Petitioner's
claims on the merits, the Court granted the Government's
motion for summary judgment and dismissed. Smith v.
United States, 2009 WL 513092 (W.D. N.C. Feb. 26, 2009).
Petitioner did not appeal.
August 6, 2012, Petitioner filed a petition for authorization
to file a second or successive § 2255 motion to vacate
pursuant to 28 U.S.C. § 2244, which the Fourth Circuit
denied on August 27, 2012, case number 12-278.
November 9, 2012, Petitioner filed a second § 2255
Motion to vacate, case number 5:12-cv-170. The Court
dismissed the § 2255 petition as successive, and denied
the petition insofar as Petitioner sought relief pursuant to
28 U.S.C. § 2241, coram nobis and audita
querela. Smith v. United States, 2012 WL
6093493 (W.D. N.C. Dec. 7, 2012). The Fourth Circuit
dismissed in part and affirmed in part. United States v.
Smith, 698 Fed.Appx. 155 (4th Cir. 2017).
Petitioner filed a second petition for authorization to file
a second or successive § 2255 motion to vacate in the
Fourth Circuit on or about March 19, 2013, which was denied
on April 5, 2013, case number 13-196.
filed the instant § 2255 Motion to Vacate, his third, on
February 28, 2018. He argues that his life sentence is
illegal and that he should be resentenced without a
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