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Smith v. United States

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

April 27, 2018

ERIC BERNARD SMITH, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          FRANK D. WHITNEY CHIEF 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 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).

         Petitioner 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.

         On 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.

         On 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).

         Meanwhile, 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.

         Petitioner 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 recidivist enhancement.

         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 ...

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