United States District Court, W.D. North Carolina, Charlotte Division
D. WHITNEY, CHIEF 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.
Â§ 2255. [Doc. 1]. For the reasons that follow, the Court
finds that this is an unauthorized, successive petition, and
the Court therefore dismisses the Motion to Vacate.
November 17, 2004, Petitioner was convicted by a jury of the
following four offenses: Hobbs Act Robbery under 18 U.S.C.
§ 1951; armed bank robbery and aiding and abetting the
same under 18 U.S.C. § 2113(d); and two counts of
possession of a firearm in furtherance of a crime of violence
under 18 U.S.C. § 924(c). [Criminal No. 3:03-cr-55
(“CR”) Docs. 81, 91]. Petitioner was sentenced on
June 7, 2005 for a total term of imprisonment of 497 months.
[CR Doc. 91]. Petitioner appealed and the Fourth Circuit
Court of Appeals affirmed his conviction and sentence. [CR
Docs. 95, 110]. The Judgment became final on September 30,
2008. [CR Doc. 125]. On September 4, 2007, while his appeal
was pending, Petitioner filed a § 2255 motion to vacate
his conviction and sentence. [Civil No. 3:07-cv-00373-FDW,
Doc. 1]. On the merits of this petition, the Court granted
the Government's motion for summary judgment and
dismissed Petitioner's petition. [Civil No.
3:07-cv-00373, Doc. 12].
25, 2016, Petitioner filed a successive § 2255 motion to
vacate together with an order from the Fourth Circuit
granting authorization for Petitioner to file a successive
§ 2255 Petition. As grounds, the Fourth Circuit noted
that Petitioner had “made a prima facie showing that a
new rule of constitutional law announced in Johnson v. United
States, 136 S.Ct. 1257 (2016), and held to apply
retroactively to cases on collateral review by Welch v.
United States, 136 S.Ct. 1257 (2016), may apply to his
case.” [Id. at 1-1]. This successive petition
is still pending in Civil No. 3:07-cv-00373 and has been
previously stayed pending a decision by the United States
Supreme Court in Beckles v. United States, United States v.
Ali, and United States v. Simms. On March 25, 2019, the
matter was stayed pending the United States Supreme
Court's decision in United States v. Davis, No. 18-431.
the Petitioner has filed another successive § 2255
motion to vacate regarding the same conviction and sentence
that is currently the subject of pending and stayed Civil No.
3:07-cv-00373. [Doc. 1].
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 21, 2019, seeking
the Court vacate his conviction and sentence in Criminal No.
3:03-cr-00055. As noted, Petitioner filed a previous motion
to vacate the same conviction and sentence on May 25, 2016,
which is currently pending before this Court and stayed
pending the Supreme Court's decision in United States v.
Davis. Thus, this is successive Section 2255 petition filed
by Petitioner challenging the conviction and sentence in
Criminal No. 3:03-cr-00055.
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.” Thus,
Petitioner must first obtain an order from the United States
Court of Appeals for the Fourth Circuit before this Court
will consider any second or successive petition under 28
U.S.C. § 2255. Petitioner has not shown that he has
obtained the permission of the United States Court of Appeals
for the Fourth Circuit 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”). Furthermore, the Court sees no
logical or legal reason for Petitioner to have filed another
§ 2255 petition regarding the same conviction and
sentence that is already properly before this Court.
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 ...