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 filed under
28 U.S.C. § 2255. (Doc. No. 1). For the reasons that follow,
the Court finds that this is an unauthorized, successive
petition, and the Court therefore dismisses the Motion to
was found guilty, after a jury trial, of conspiracy to
possess with intent to distribute cocaine and cocaine base,
in violation of 21 U.S.C. § 846, and possession with
intent to distribute cocaine, in violation of 21 U.S.C.
§ 841(a)(1). See (Crim. No. 3:05-cr-216-RJC-1,
Doc. No. 195: Judgment). This Court subsequently sentenced
Petitioner to a total of 360 months, consecutive to any state
sentence Petitioner may be serving. (Id.).
Petitioner appealed and on July 1, 2008, the Fourth Circuit
Court of Appeals affirmed his conviction and sentence.
(Id., Doc. No. 214).
24, 2009, Petitioner filed a motion to vacate his sentence
under 28 U.S.C. § 2255. (Id., Doc. No. 227). On
June 25, 2012, this Court denied and dismissed the motion to
vacate with prejudice on the merits. (Id., Doc. No.
241). Petitioner appealed, and on May 31, 2017, the Fourth
Circuit affirmed the denial of the motion to vacate.
(Id., Doc. No. 268). Petitioner filed the instant
action on May 25, 2018, bringing claims of ineffective
assistance of counsel.
STANDARD OF REVIEW
to Rule 4(b) of the Rules Governing Section 2255 Proceedings,
sentencing courts are directed to promptly examine motions to
vacate, along with “any attached exhibits and the
record of prior proceedings” in order to determine
whether a petitioner is entitled to any relief. After having
considered the record in this matter, the Court finds that no
response is necessary from the United States. Further, the
Court finds that this matter can be resolved without an
evidentiary hearing. See Raines v. United States,
423 F.2d 526, 529 (4th Cir. 1970).
filed the instant motion to vacate on May 25, 2018, seeking
to have this Court vacate his sentence. Petitioner filed a
previous motion to vacate the same conviction and sentence,
and this Court denied the motion to vacate. Thus, this is a
successive petition. Pursuant to 28 U.S.C. §
2244(b)(3)(A), “[b]efore a second or successive
application permitted by this section is filed in the
district court, the applicant shall move in the appropriate
court of appeals for an order authorizing the district court
to consider the application.” Petitioner has not shown
that he has obtained the permission of the Fourth Circuit
Court of Appeals to file a successive petition. See
also 28 U.S.C. § 2255(h) (stating that “[a]
second or successive motion must be certified as provided in
section 2244 by a panel of the appropriate court of
appeals”). Accordingly, this successive petition must
be dismissed. See Burton v. Stewart, 549 U.S.
147, 153 (2007) (holding that failure of petitioner to obtain
authorization to file a “second or successive”
petition deprived the district court of jurisdiction to
consider the second or successive petition “in the
foregoing reasons, the Court will dismiss Petitioner's
Section 2255 Motion to Vacate for lack of jurisdiction
because the motion is a successive petition and Petitioner
has not first obtained permission from the Fourth Circuit
Court of Appeals to file the motion.
IS, THEREFORE, ORDERED that:
Petitioner's Motion to Vacate, (Doc. No. 1), is
DISMISSED as a successive petition.
IT IS FURTHER ORDERED that pursuant to Rule
11(a) of the Rules Governing Section 2254 and Section 2255
Cases, this Court declines to issue a certificate of
appealability. See 28 U.S.C. § 2253(c)(2);
Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (in
order to satisfy § 2253(c), a petitioner must
demonstrate that reasonable jurists would find the district
court's assessment of the constitutional claims debatable
or wrong); Slack v. McDaniel529 U.S. 473, 484
(2000) (when relief is denied on procedural grounds, a
petitioner must ...