United States District Court, W.D. North Carolina, Asheville Division
REIDINGER, UNITED STATES DISTRICT JUDGE
MATTER is before the Court on the Petitioner's
Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody. [Doc. 1].
8, 1998, the Petitioner was charged in a four count Bill of
Indictment with carjacking, using a firearm during a crime of
violence, transporting a stolen vehicle in interstate
commerce and felony possession of a firearm, in violation of
18 U.S.C. § 2119, 824(c)(1), 2312, and
922(g). [Criminal No. 4:98-cr-212
(“CR”), Doc. 1]. Petitioner pled guilty to the
charge of carjacking pursuant to a plea agreement and, in
exchange, the Government dismissed the remaining three
counts. [CR Doc. 14]. In accordance with the terms of the
plea agreement, the Petitioner was sentenced to three hundred
months' imprisonment. [CR Doc. 21]. He filed a direct
appeal and, on May 15, 2000, the Fourth Circuit vacated
Petitioner's conviction because the Indictment did not
contain a recitation that serious bodily injury had occurred
during the carjacking offense to which the Petitioner pled
guilty. United States v. Rudisill, No. 99-4588, 2000
WL 620314 (4th Cir. May 15, 2000). Rather, the Petitioner
only pled guilty to a violation of 18 U.S.C. § 2119(1),
which does not include the element of serious bodily injury.
The Court held, therefore, that the sentence was erroneously
remand, the Government successfully moved to set aside the
plea agreement in order to reinstate the three counts
previously dismissed against Petitioner. [CR Doc. 34]. In
August 2000, Petitioner was charged in a Superseding Bill of
Indictment with one count of using and carrying a firearm
during a crime of violence in violation of 18 U.S.C. §
924(c)(1), one count of transporting a stolen vehicle in
interstate commerce in violation of 18 U.S.C. § 2312,
and one count of felony possession of a firearm in violation
of 18 U.S.C. § 922(g)(1). [CR Doc. 35]. After a jury
trial, Petitioner was found guilty of all three counts and
was sentenced on October 31, 2001 to 465 months'
imprisonment. [CR Docs. 55, 63]. Petitioner did not appeal
his conviction or sentence. [See CR Doc. 59].
15, 2009, eight years after his conviction and sentence
became final, the Petitioner brought his first motion
pursuant to 28 U.S.C. § 2255. [Civil No. 1:09-cv-262,
Doc. 1]. On July 29, 2009, the Court dismissed it as
time-barred, as it was filed approximately six and a half
years after his conviction became final. [Id. at
Doc. 2]. The Petitioner's appeal from that ruling was
dismissed by the Fourth Circuit on September 8, 2009.
[Id. at Doc. 10].
October 2010, Petitioner filed another § 2255 motion,
again seeking his October 31, 2001 prison sentence be
vacated, set aside, or corrected. [Civil No. 1:10-cv-253-MR,
Doc. 1]. Petitioner also moved for his guilty plea to be set
aside. [Id.]. This Court dismissed Petitioner's
§ 2255 motion and denied Petitioner's motion to set
aside his guilty plea. [Id. at Doc. 3].
Petitioner moves again under § 2255 to vacate, set
aside, or correct the same October 31, 2001 prison sentence.
STANDARD OF REVIEW
4(b) of the Rules Governing Section 2255 Proceedings provides
that courts are to promptly examine motions to vacate, along
with “any attached exhibits and the record of prior
proceedings” in order to determine whether the
petitioner is entitled to any relief on the claims set forth
therein. After examining the record in this matter, the Court
finds that the motion to vacate can be resolved without an
evidentiary hearing based on the record and governing case
law. See Raines v. United States, 423 F.2d 526, 529
(4th Cir. 1970).
initial motion pursuant to § 2255 has been adjudicated
on the merits, a second or successive motion under the
statute must be certified by the court of appeals before it
may be filed with this Court. 28 U.S.C. § 2255(h). To
certify a second or successive § 2255 motion for filing
with this Court, the court of appeals must find that the
motion contains 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.” Id. A dismissal of a § 2255
motion as untimely constitutes an adjudication on the merits.
Villanueva v. United States, 346 F.3d 55, 61 (2d
Cir. 2003), cert. denied, 542 U.S. 928 (2004);
United States v. Gardner, 132 F.App'x. 467, 468
(4th Cir. 2005). Petitioner's first petition was
dismissed as untimely. [Civil No. 1:09-cv-262, Doc. 2]. The
Petitioner has not sought and obtained certification from the
Fourth Circuit Court of Appeals prior to filing this motion.
As such, this Court may not consider the merits of
Petitioner's claim here.
Court will deny Petitioner's Section 2255 Motion to
Vacate, Set Aside, or Correct Sentence [Doc. 1] and
admonishes the Plaintiff that any future motions related to
his October 31, 2001 sentence lacking the ...