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Boyd v. United States

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

June 15, 2018

ANTHONY EUGENE BOYD, 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 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).

         Petitioner 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. 1775 (2014).

         Petitioner 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).

         Petitioner 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).

         On 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).

         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 ...


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