United States District Court, W.D. North Carolina, Charlotte Division
J. Conrad, Jr., United States District Judge.
MATTER is before the Court on Petitioner's pro
se Motion to Vacate, Set Aside or Correct Sentence pursuant
to 28 U.S.C. § 2255. [Doc. 1].
15, 2005, pro se Petitioner Kimberly Baker pled guilty in
this Court to conspiracy to possess with intent to distribute
cocaine, under 21 U.S.C. § 846. [Criminal No.
3:04-cr-222-RJC-CH-2 (“CR”), Doc. 58: Acceptance
and Entry of Guilty Plea; Doc. 96: Judgment]. On March 6,
2006, Petitioner was sentenced to 240 months of imprisonment.
[Id., Doc. 96]. Petitioner did not appeal.
August 24, 2006, Petitioner filed a Section 2255 motion to
vacate, which this Court denied and dismissed on the merits
on November 14, 2007. [Civil No. 3:06-cv-00364-RJC, Docs. 1,
18]. On January 11, 2016, the Court reduced Petitioner's
sentence to 192 months of imprisonment pursuant to U.S.S.G.
Amendment 782. [CR Doc. 143]. On February 13, 2017,
Petitioner filed a second Section 2255 petition, motion to
vacate, which this Court dismissed as a successive petition
over which it lacked jurisdiction without Petitioner having
obtained authorization from the Fourth Circuit Court of
Appeals to file it. [Civil No. 3:17-cv-00063-RJC, Docs. 1,
2]. Petitioner filed the instant § 2255 motion to vacate
on September 17, 2019. [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 September 17, 2019,
seeking to have the Court vacate her conviction and sentence
in Criminal No. 3:04-cr-222-RJC-CH-2. As noted, Petitioner
filed a previous motion to vacate the same conviction and
sentence on August 24, 2006, which was dismissed on the
merits. Petitioner filed a second motion to vacate the same
conviction and sentence February 13, 2017, which was
dismissed as successive.
Antiterrorism and Effective Death Penalty Act provides, in
relevant part, that before a prisoner may file a second or
successive motion under § 2255 challenging his federal
criminal judgment(s), he first must obtain authorization to
do so from the appropriate circuit court of appeals. 28
U.S.C. §§ 2244(b)(3)(A), 2255(h). A district court
lacks jurisdiction to consider a second or successive §
2255 motion unless the motion has been certified in advance
by the appropriate appellate court. See §
2255(h); United States v. Winestock, 340 F.3d 200,
205 (4th Cir. 2003).
provides no evidence that she has obtained authorization from
the Fourth Circuit to file a second or successive § 2255
motion. Consequently, the Court lacks jurisdiction to
consider the instant Motion to Vacate, and it must be
dismissed. See Winestock, 340 F.3d at 205.
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 permission from the Fourth Circuit
Court of Appeals to file the motion.