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United States v. Beverly

United States District Court, Fourth Circuit

January 9, 2014

UNITED STATES OF AMERICA
v.
KENNETH D. BEVERLY Civil Action No. 3:13CV412-HEH

MEMORANDUM OPINION (Dismissing Successive 28 U.S.C. § 2255 Motion)

HENRY E. HUDSON, District Judge.

On October 20, 2010, by Memorandum Opinion and Order, this Court denied Kenneth D. Beverly's original motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. United States v. Beverly, No. 3:05cr526-HE" (E.D. Va. Oct. 20, 2010). On November 30, 2012, the Court received a MOTION FOR LEAVE TO STRIKE THE PREVIOUSLY FILED COMBINED 60(b)(4) - Rule 15 MOTION... and TO INCLUDE THIS RULE 15(d) MOTION" ("Rule 15(d) Motion, " ECF No. 164).[1] As explained below, the Rule 15(d) Motion challenges Beverly's sentence and must he treated as a successive, unauthorized 28 U.S.C. § 2255 motion,

The Antiterrorism and Effective Death Penalty Act of 1996 restricts the jurisdiction of the district courts to hear second or successive applications for federal habeas corpus relief by prisoners attacking the validity of their convictions and sentences by establishing a " gatekeeping' mechanism." Felker v. Turpin, 518 U.S. 651, 657 (1996). Specifically, [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." 28 U.S.C. § 2244(b)(3)(A).

The United States Court of Appeals for the Fourth Circuit has held that inmates may not avoid the bar on successive collateral attacks on their convictions and sentences by inventive labeling. See United States v. Winestock, 340 F.3d 200, 206 (4th Cir. 2003). "Call it a motion for a new trial, arrest of judgment, mandamus, prohibition, coram nobis, coram vobis, ... the name makes no difference. It is substance that controls." Melton v. United States, 359 F.3d 855, 857 (7th Cir. 2004) (citing Thurman v. Gramley, 97 F.3d 185, 186-37 (7th Cir. 1996)). Thus, tiny motion filed in the district court that imposed the sentence, and substantively within the scope of § 2255[(a)], is a motion under § 2255, no matter what title the prisoner plasters on the cover." Id. (citing Ramunno v. United Slates, 264 F.3d 723 (7th Cir. 2001)).

Beverly argues that his sentence is invalid under United States v. Booker, 543 U.S. 220 (2005). Beverly's Rule 15(d) Motion attacks his sentence and squarely falls within the ambit of § 2255. Accordingly, the Rule 15(d) Motion is properly construed as a successive 28 U.S.C. § 2255 motion.

The Clerk will be directed to file the Rule 15(d) Motion (ECF No. 164) as an unauthorized, successive motion pursuant to 28 U.S.C. § 2255. Because the Fourth Circuit has not authorized this Court to hear Beverly's successive § 2255 motion, the Rule 15(d) Motion (ECF No. 164) will he dismissed for want of jurisdiction. A certificate of appealability will be denied.[2]

An appropriate order will accompany this Memorandum Opinion.


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