United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE CHIEF UNITED STATES DISTRICT JUDGE.
cause comes before the Court on petitioner' spro
se motion to remove enhancements in her presentence
report (PSR). [DE 744]. Respondent has moved to dismiss the
motion as an unauthorized second or successive 18 U.S.C.
§ 2255 petition. [DE 757]. The matter is ripe for
disposition. For the reasons discussed below,
respondent's motion to dismiss [DE 757] is GRANTED and
petitioner's motion [DE 744] is DISMISSED.
March 2013, petitioner pleaded guilty, pursuant to a written
plea agreement, to conspiracy to distribute and possess with
intent to distribute 500 grams or more of a mixture and
substance containing a detectable amount of methamphetamine
in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A).
[DE 267, 268]. In January 2014, Judge Fox sentenced her to
240 months' imprisonment and a lifetime term of
supervised release. [DE 393, 415]. At sentencing, petitioner
was given a 2-level enhancement for possession of a dangerous
weapon (including a firearm) under U.S.S.G. §
2D1.1(b)(1) and a 3-level enhancement for creating a
substantial risk of harm to human life under U.S.S.G. §
2Dl.l(b)(13)(c)(ii). [DE 284, p. 18]. Petitioner waived her
right to appeal and did not notice a direct appeal. [DE 268].
In August 2016, the Court granted petitioner's motion to
reduce her sentence from 240 months to 144 months under the
drug quantity table amendment to the U.S. Sentencing
Guidelines. [DE 662].
2016, petitioner filed a motion to vacate her sentence under
28 U.S.C. § 2255. [DE 655]. In response, the government
moved to dismiss her petition for failure to state a claim
upon which relief can be granted under Federal Rule of Civil
Procedure 12(b)(6). [DE 682]. In December 2016, the Court
granted the government's motion and dismissed
petitioner's Section 2255 petition. [DE 700]. The Court
also declined to issue a certificate of appealability under
Rule 11(a) and 28 U.S.C. § 2253(c)(2). Id.
2018, petitioner filed the instant motion, asking the Court
to remove from her PSR the 2-level and 3-level enhancements
that she received for possession of a firearm and harm to
human life, arguing that the enhancements are preventing her
from obtaining the benefits of the Resident Drug and Alcohol
Program. RDAP is the Bureau of Prisons' 500-hour
residential drug treatment program and eligibility for the
program is based on criteria established by the BOP under 18
U.S.C. § 3621(e)(2)(B), but includes only non-violent
offenders. In December 2018, the government moved to dismiss
petitioner's motion, arguing that it is an unauthorized
second or successive Section 2255 petition, that it is
precluded by the waiver in petitioner's plea agreement,
and that petitioner has failed to state a claim upon which
relief can be granted. [DE 757].
government argues that petitioner's Section 2255 petition
must be dismissed because it is an unauthorized successive
petition. Federal habeas petitioners are generally permitted
only one Section 2255 motion. 28 U.S.C. § 2255(h). As
such, under Federal Rule of Civil Procedure 12(b)(1), federal
courts lack subject-matter jurisdiction to hear successive
petitions. United States v. Winestock, 340 F.3d 200,
204-05 (4th Cir. 2003); see also In re Goddard, 170
F.3d 435, 436 (4th Cir. 1999). There are, however, some
exceptions. If the first petition was not decided on the
merits, for example, the second petition is not improperly
successive. Slack v, McDaniel, 529 U.S. 473, 485-86
(2000). Or if the second petition is based on the intervening
vacatur of a conviction used to enhance the petitioner's
sentence, it is not improperly successive. United States
v. Hairston, 754 F.3d 258, 262 (4th Cir. 2014).
Court finds that, because petitioner is seeking to remove
enhancements, she is seeking to vacate parts of the sentence
that she received in 2014. Petitioner's motion must be
construed as a Section 2255 petition. See Calderon v.
Thompson, 523 U.S. 538, 554 (1998) (finding that the
subject matter of the motion, rather than the
petitioner's description, determines the motion's
status); see also Davis v. United States, Civ. Act.
No. PJM-09-1251, Crim. Act. No. PJM-00-424, 2009 WL 1658038,
at *1 (D. Md. Jun. 12, 2009) ("By disputing the
sentencing enhancement, [petitioner] is undeniably attacking
his sentence, not a defect in collateral review. The pleading
is appropriately considered as a successive 28 U.S.C. §
has not obtained a certificate of appealability and has not
shown that any of the exceptions to 28 U.S.C. § 2255(h)
are applicable to her petition. Thus, petitioner's
Section 2255 motion is an unauthorized second or successive
petition and, as such, the Court does not have subject-matter
jurisdiction to consider it. The motion must be dismissed.
certificate of appealability shall not issue absent "a
substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). A petitioner
satisfies this standard by demonstrating that reasonable
jurists would find that an assessment of the constitutional
claims is debatable and that any dispositive procedural
ruling dismissing such claims is likewise debatable.
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003);
Slack, 529 U.S. at 483-84; Rose v. Lee, 252
F.3d 676, 683
Cir. 2001). As reasonable jurists would not find this
Court's dismissal of petitioner's Section 2255