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 possession
with intent to distribute marijuana, Ecstasy, cocaine, and
cocaine base, and possession of a firearm during and in
relation to a drug trafficking crime. (3:07-cr-45, Doc. Nos.
13, 14). He was sentenced to a total of 255 months'
imprisonment. (3:07-cr-45, Doc. No. 18). The Fourth Circuit
Court of Appeals affirmed, United States v. Boyd,
332 Fed.Appx. 890 (4th Cir. 2009), and the United
States Supreme Court denied certiorari, Boyd v. United
States, 558 U.S. 976 (2009).
filed a § 2255 Motion to Vacate, case number
3:10-cv-213, that the Court denied on the merits. Boyd v.
United States, 2013 WL 1190701 (W.D. N.C. March 22,
2013). The Fourth Circuit denied a certificate of
appealability and dismissed Petitioner's appeal.
United States v. Boyd, 540 Fed.Appx. 174
(4th Cir. 2013). The United States Supreme Court
denied certiorari. Boyd v. United States, 134 S.Ct.
filed a second § 2255 Motion to Vacate, case number
3:12-cv-507, that the Court construed as a motion to amend
his original § 2255 petition. Petitioner's new claim
was time-barred, however, so the motion to amend was denied
as futile. Boyd v. United States, 2015 WL 5113274
(W.D. N.C. Aug. 31, 2015).
filed a third § 2255 Motion to Vacate that the Court
dismissed as an unauthorized second or successive petition,
case number 3:14-cv-337. (3:14-cv-337, Doc. No. 4).
March 26, 2018, Petitioner filed his fourth § 2255
Motion to Vacate in the instant case. He argues that his
conviction and sentence under 18 U.S.C. § 924(c) are
invalid pursuant to 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 ...