United States District Court, W.D. North Carolina, Charlotte Division
GARY L. DAVIS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
Cogburn 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 following
reasons, the Court finds that this is an unauthorized,
successive petition, and the Court therefore dismisses the
Motion to Vacate.
1990, pro se Petitioner was found guilty, after a jury trial,
of conspiracy to possess with intent to distribute cocaine
base and use of a firearm during and in relation to a
drug-trafficking crime and aiding and abetting. See
(Crim. No. 3:90-cr-85). This Court subsequently sentenced
Petitioner to a total of 660 months in prison. See
(Civ. No. 3:06-cv25 at 1). Petitioner appealed and on October
7, 2003, the United States Court of Appeals for the Fourth
Circuit affirmed this Court's judgment and conviction.
(Id. at 1-2).
17, 2006, Petitioner filed his first motion to vacate his
sentence under 28 U.S.C. § 2255. (Civ. No. 3:06cv25,
Doc. No. 1), which this Court denied and dismissed as
untimely. (Id., Doc. No. 3). Petitioner filed a
second motion to vacate on June 4, 2007, and on June 6, 2007,
this Court dismissed that motion to vacate as an unauthorized
successive petition. Petitioner placed the instant motion to
vacate in the prison system for mailing on June 22, 2018, and
it was stamp-filed in this Court on July 6, 2018. Petitioner
contends in the motion to vacate that this Court “erred
by failing to render a sufficient jury instruction to support
the element of an agreement to satisfy a conspiracy at 21
U.S.C. § 846, ” and he also contends that he is
“actually innocent” of the 50 gram or more
threshold quantity for which he was found responsible. (Doc.
No. 12 at 4, 5).
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).
noted, Petitioner filed the instant motion to vacate on July
6, 2018, seeking to have the Court vacate his conviction and
sentence in Criminal No. 3:90-cr-85-MOC-7. Petitioner filed a
previous motion to vacate the same conviction and sentence,
and this Court denied the motion to vacate. Furthermore,
Plaintiff has filed a second motion to vacate, which has
already been denied as successive. Thus, this is the second
successive petition filed by Petitioner. 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 first place”).
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. McDaniel, 529 U.S. 473, 484
(2000) (when relief is denied on procedural grounds, a
petitioner must ...