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 “Pursuant [to] 18 U.S.C. §
924(c), ” (Doc. No. 1), that has been opened in this
civil case as a Motion to Vacate pursuant to 28 U.S.C. §
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 approval).
pending before the Court for consideration is
Petitioner's Motion “Pursuant [to] 18 U.S.C. §
924(c), ” 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 vague.
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 argument presented by the Petitioner can be
resolved based on the record and governing case law. See
Raines v. United States, 423 F.2d 526, 529
(4th Cir. 1970).
instant Petition is largely duplicative of the petition filed
in case number 3:19-cv-399 and is dismissed without prejudice
for lack of jurisdiction for the same reasons.
extent that Petitioner may be seeking other relief, the
Motion is too vague and conclusory for the Court to determine
the theories Petitioner intends to pursue or the relief he
may be seeking. Therefore, the remainder of the Motion is
dismissed without prejudice as insufficient to proceed.
foregoing reasons, the instant Motion will be construed as a
petition for relief under § 2255 and/or § 2241 and
will be dismissed without prejudice for lack of jurisdiction.
Any additional claims are dismissed as too vague and
conclusory to proceed.
IS, THEREFORE, ORDERED that:
Petitioner's Motion “Pursuant [to] 18 U.S.C. §
924(c), ” (Doc. No. 1), is construed as a Motion to
Vacate, Set Aside or Correct Sentence under 28 U.S.C. §
2255 and/or a Petition for Writ of Habeas Corpus under 28
U.S.C. § 2241, and is DISMISSED without
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. McDaniel529 U.S. 473, 484
(2000) (when relief is denied on procedural grounds, a
petitioner must ...