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Smith v. United States

United States District Court, E.D. Virginia, Norfolk Division

September 16, 2014

TERRANCE SMITH, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

MEMORANDUM ORDER

RAYMOND A. JACKSON, District Judge.

This matter is before the Court on Petitioner Terrance Smith's Motion to Vacate. Set Aside or Correct a Sentence Previously Imposed pursuant to 28 U.S.C. § 2255 ("§ 2255 Petition").

Specifically, Petitioner challenges the Court's application of the careeroffender enhancement. U.S.S.G. § 4B1.1-in light of United Slates v. Simmons. 649 F.3d 237 (4th Cir. 2011). and Miller v. United States. 735 F.3d 141 (4th Cir. 2013). See also Whiteside v. United Slates. 748 F.3d 541 (4th Cir. 2014) (erroneous application of career offender enhancement is cognizable in § 2255 proceedings and equitable tolling is warranted), reli'g en banc granted. 2014 WL 3377981 (4th Cir. July 10. 2014).[1]

Title 28 U.S.C. § 2255 authorizes a person in federal custody to seek to vacate his sentence or conviction if either was improperly attained. Section 2255(h) provides that a "second or successive motion" must be certified by the appropriate court ofappeals. Petitioner previously filed a § 2255 Petition onJuly 12, 2007. This Court dismissed the Petition onJanuary 31, 2008. Petitioner then filed a Motion to Dismiss, whichthis Court construedas a second § 2255 Petition, on June 18, 2012. The Court dismissed Petitioner's second petitionon June 21, 2012. The instant § 2255 Petition was filed on July 28, 2014. On August 8, 2014, the United States Courtof Appeals for the FourthCircuit ("Fourth Circuit") denied Petitioner'smotion under 28 U.S.C. § 2244 for an order authorizing this Courtto consider a second or successive application for reliefunder 28 U.S.C. § 2255. ECFNo. 390. Because Petitioner has failed to obtain authorization from the Fourth Circuit to file a successive petition, the Court lacks jurisdiction to consider this § 2255 Petition. Accordingly, Petitioner's request is DISMISSED.

The Court DIRECTS the Clerk to send a copy of this Order to Petitioner and to the United States Attorney.

The Court ADVISES Petitioner that he may appeal this final order by forwarding a written notice of appeal to the Clerkof the United StatesDistrict Court, United States Courthouse, 600 Granby Street, Norfolk, VA 23510. The Clerk must receivethis written notice within sixty (60) days from this Order's date.

IT IS SO ORDERED.


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