United States District Court, W.D. North Carolina, Charlotte Division
C. Mullen United States District Judge
MATTER comes before the Court on Petitioner's
pro se “Motion Court to Review of Sentence
Pursuant 18 U.S.C. § 3742, ” (Doc. No. 1), that
has been opened in this civil case as a Motion to Vacate
pursuant to 28 U.S.C. § 2255.
found Petitioner guilty in the underlying criminal case of:
Count (1), interstate domestic violence resulting in bodily
injury and death (18 U.S.C. § 2261(a), 2261(b), 2266);
and Count (2), using or carrying a firearm during and in
relation to a crime of violence, murder (18 U.S.C.
§§ 924(c)(1), 924(j), 1111). (3:98-cr-244, Doc. No.
1). The jury specifically found with regards to the §
924(c) violation in Count (2) that Petitioner is guilty of
first-degree murder. (Id., Doc. No. 79). The Court
sentenced Petitioner to two concurrent life sentences.
(Id., Doc. No. 98). The Fourth Circuit affirmed on
direct appeal. United States v. Falice, 18 Fed.Appx.
210 (4th Cir. 2001).
has filed multiple challenges to his conviction and sentence
in this Court including several motions to vacate pursuant to
28 U.S.C. § 2255, all of which were unsuccessful.
See Falice v. United States, 82 Fed.Appx. 823
(4th Cir. 2003) (dismissed as untimely);
Falice v. United States, 2012 WL 5198369 (W.D. N.C.
Oct. 19, 2012) (dismissed as an unauthorized second or
successive § 2255), appeal dismissed United States
v. Falice, 557 Fed.Appx. 223 (4th Cir. 2014);
Falice v. United States, 2014 WL 12710239 (W.D. N.C.
Nov. 18, 2014) (dismissed as an unauthorized second or
successive § 2255 petition), appeal dismissed United
States v. Falice, 600 Fed.Appx. 106 (4th Cir.
2015); United States v. Falice, 704 Fed.Appx. 256
(4th Cir. 2017) (affirming denial of motion to
dismiss criminal conviction for lack of jurisdiction);
United States v. Falice, 728 Fed.Appx. 241
(4th Cir. 2018) (affirming denial of motion
seeking relief from sentence).
has also sought sentencing relief in other district courts
without success. See Falice v. True, 2019 WL 2409571
(S.D. Ill. June 7, 2019) (dismissing § 2241 petition
with prejudice); Falice v. United States, 2016 WL
7187639 (W.D. Okla. Dec. 9, 2016) (dismissing § 2255
petition for lack of jurisdiction).
Court notes that Petitioner's vexatious filings have
resulted in the imposition of fines and prefiling
injunctions. See (Doc. No. 123); see also United
States v. Martin et al., 2:03-cv-157 (W.D. Va.
Feb. 17, 2005) (permanently enjoining Defendant from filing
future common law liens without first obtaining court
pending before the Court for consideration is
Petitioner's “Motion Court to Review of Sentence
Pursuant 18 U.S.C. § 3742, ” (3:98-cr-244, Doc.
No. 315), that has been recharacterized as a § 2255
Motion to Vacate. Liberally construed, the petition appears
to ask the Court to vacate his § 924(c) conviction and
sentence pursuant to United States v. Davis, 139
S.Ct. 2319 (2019) and United States v. Simms, 914
F.3d 229 (4th Cir. 2019), which held that §
924(c)'s residual clause in is unconstitutionally
STANDARD OF REVIEW
2255 allows federal prisoners to challenge the legality of
their confinement by petitioning the court where they were
sentenced. 28 U.S.C. § 2255(a). However, once a prisoner
has filed one unsuccessful § 2255 motion, he may not
file another except under very limited circumstances. Before
filing a “second or successive” petition, the
prisoner must first receive permission from the court of
appeals by showing either “newly discovered
evidence” proving he was not guilty of his offense, or
that a new, previously unavailable rule of constitutional law
made retroactive on collateral review by the Supreme Court
entitles him to relief. 28 U.S.C. § 2255(h)(1)-(2).
These restrictions are known as the “gatekeeping
provisions” of § 2255, and they “don't
allow a second petition for new statutory
constructions.” Lester v. Flournoy, 909 F.3d
708, 710-11 (4th Cir. 2018); see also Gonzalez
v. Crosby, 545 U.S. 524, 531 (2005) (a motion for relief
from judgment alleging that a change in substantive law
justifies relief from the previous denial of a habeas
petition is in substance a second or successive habeas
petition requiring authorization from the court of appeals).
A court of appeals may authorize the filing of a second or
successive application only if it determines that “the
application makes a prima facie showing that the
application satisfies the requirements of this
subsection.” 28 U.S.C. § 2244(b)(3)(C). In the
absence of pre-filing authorization, a district court lacks
jurisdiction to consider an application containing abusive or
repetitive claims. See Burton v. Stewart, 549 U.S.
147, 153 (2007) (holding that petitioner's failure 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.”); United States v.
Winestock, 340 F.3d 200, 205 (4th Cir. 2003).
limited circumstances, a prisoner otherwise unable to file a
second or successive § 2255 petition may instead seek
relief under § 2241 pursuant to § 2255's
“savings clause” when it appears that § 2255
is inadequate or ineffective to test the legality of the
petitioner's detention. See In re
Jones, 226 F.3d 328, 333-34 (4th Cir.
2000). Section 2255's savings clause provides:
An application for a writ of habeas corpus [pursuant to 28
U.S.C. § 2241] in behalf of a prisoner who is authorized
to apply for relief by motion pursuant to this section, shall
not be entertained if it appears that the applicant has
failed to apply for relief, by motion, to the court which
sentenced him, or that such court has denied him relief,
unless it also appears that the remedy by motion is
inadequate or ineffective to test the legality of his
28 U.S.C. § 2255(e).
2255 is inadequate and ineffective to test the legality of a
conviction under the “savings clause” when: (1)
at the time of the conviction, settled law of this circuit or
the Supreme Court established the legality of the conviction;
(2) subsequent to the prisoner's direct appeal and first
§ 2255 motion, the substantive law changed such that the
conduct of which the prisoner was convicted is deemed not to
be criminal; and (3) the prisoner is unable to meet the
gatekeeping provisions of § 2255(h)(2) for second or
successive motions because the new rule is not one of
constitutional law. In re Jones, 226 F.3d at 328
(4th Cir. 2000). The Fourth Circuit recently held
that § 2255 is inadequate and ineffective to test the
legality of a sentence when: (1) at the time of sentencing,
settled law of this circuit or the Supreme Court established
the legality of the sentence; (2) subsequent to the direct
appeal and first § 2255 motion, the aforementioned
settled substantive law changed and was deemed to apply
retroactively on collateral review; (3) the prisoner is
unable to meet the gatekeeping provision of § 2255(h)(2)
for second or successive motions; and (4) due to this
retroactive change, the sentence now presents an error
sufficiently grave to be deemed a fundamental defet.
United States v. Wheeler, 886 F.3d 415, 429
(4th Cir. 2018), cert. denied, 139 S.Ct.