United States District Court, Western District of Virginia, Charlottesville Division
May 19, 2015
UNITED STATES OF AMERICA
2255 MEMORANDUM OPINION
NORMAN K. MOON UNITED STATES DISTRICT JUDGE
Louis Bryant, a federal inmate proceeding pro se, filed this motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255, challenging his 2006 conviction and sentence. The government filed a motion to dismiss and Bryant has responded, making this matter ripe for consideration. I conclude that Bryant’s instant motion is second or successive under § 2255(h). Bryant has not obtained permission from the United States Court of Appeals for the Fourth Circuit to file a second or successive motion; therefore, I do not have jurisdiction to consider Bryant’s motion. Accordingly, I will dismiss Bryant’s § 2255 motion without prejudice.
On February 16, 2005, Bryant and sixteen codefendants were charged in a nineteen-count superseding indictment. On May 22, 2006, the jury found Bryant guilty of eight counts related to narcotics trafficking, firearms offenses, and associated violent acts stemming from his role as leader of a violent drug organization in Charlottesville, Virginia. By special verdict, the jury found that Bryant was a principal supervisor and leader in the enterprise, that the enterprise involved the distribution of 1.5 kilograms or more of substances containing cocaine base, and that a number of violent acts and narcotics offenses were carried out in aid of the enterprise’s racketeering activities.
On August 21, 2006, I sentenced Bryant to life imprisonment. Bryant appealed and the Fourth Circuit remanded with instructions to vacate the conviction on Count One, but affirmed all of the other convictions, and the life sentence. Bryant appealed to the United States Supreme Court, which denied his petition for writ of certiorari.
Bryant filed his first § 2255 motion on June 2, 2010, raising claims concerning the court’s jurisdiction, trial court error, prosecutorial misconduct, sentencing inequity, and ineffective assistance of counsel. Subsequently, Bryant filed a motion for “leave to expand the record, ” that included affidavits from Detric Cabell, Travis Chalk, and a letter from Roger Henry. The court granted Bryant’s motion to expand the record on August 17, 2010. On February 10, 2012, Bryant filed a second motion for “leave to expand the record” to include affidavits from Chandar Bingham, Gershom Canady, and Lamont Payne. On April 19, 2012, the court granted Bryant’s second motion to expand the record. Thereafter, on January 31, 2013, I granted the government’s motion to dismiss. Bryant appealed and the Fourth Circuit denied a certificate of appealabilty and dismissed the appeal on May 6, 2013.
On May 12, 2014, Bryant filed the instant motion, claiming that newly discovered evidence, in the form of sworn affidavits, demonstrates that witnesses against him provided false information to investigators and testified falsely at his trial. I construed his motion, which he labeled “motion/petition for new trial, ” as a § 2255 motion and, in light of the Fourth Circuit’s ruling in United States v. Hairston, 754 F.3d 258 (4th Cir. 2014), ordered the government to respond. In its response, the government argued that the “underlying facts of [Bryant’s] current claim existed at the time his first § 2255 motion was filed” and thus, the instant § 2255 motion should be dismissed as an unauthorized successive motion.
The Antiterrorism and Effective Death Penalty Act of 1996 mandates that if a defendant has already filed one motion for collateral relief to vacate, set aside, or correct a sentence, a second or successive motion must be certified as provided in § 2244 by a panel of the appropriate court of appeals to contain:
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
28 U.S.C. § 2255(h). Bryant filed a prior § 2255 motion on June 2, 2010, which I dismissed on January 31, 2013. In Hairston, the Fourth Circuit recognized an exception to the successive petition bar, holding that “a numerically second § 2255 motion should not be considered second or successive pursuant to § 2255(h) where . . . the facts relied on by the movant seeking resentencing did not exist when the numerically first motion was filed and adjudicated.” Id. at 262. As discussed below, I conclude that Bryant’s instant § 2255 motion does not fall under this exception and I further conclude that Bryant’s instant motion is a second or successive one under § 2255(h). Because Bryant has not obtained permission from the Fourth Circuit to file a second or successive motion, I do not have jurisdiction to consider Bryant’s motion.
In Hairston, the petitioner filed a § 2255 petition after the state court vacated a prior conviction which had raised his criminal history category from III to IV. 754 F.3d at 259. Though a previous § 2255 petition had been denied, the Fourth Circuit concluded that the § 2255 petition was not a second or successive petition within the meaning of § 2255(h) because Hairston’s claim was not ripe until his state conviction was vacated. Id. at 261-62. However, Hairston does not provide Bryant with relief because the information presented in Bryant’s instant § 2255 motion existed when his first motion was filed and adjudicated. See Id. at 262. Further, the issue in Hairston involved a prior conviction being vacated, not the discovery of new evidence that certain witnesses testified falsely at trial. See Id. at 258.
Bryant’s instant § 2255 motion alleges that newly discovered evidence demonstrates that witnesses against him provided false information to investigators and false testimony at trial. Specifically, Bryant’s supporting affidavits allege that the following individuals provided false information or testimony: Ernest Anderson, David Woodfolk, Brooks Woodfolk, Jesse Williams, Sidney Stinnie, Lorenzo Timberlake, Roger Henry, Derrick Smith, Lorenzo Lauderbachs, Detric Cabell, and Andre Waller. Bryant does not identify any specific statements he claims were false, or exaggerated, but rather states “the false testimony is too volumes [sic] to point out specifics.”
What Bryant now alleges to be new facts regarding false witness testimony actually existed when he filed his first § 2255 motion. In his first § 2255 motion, Bryant filed affidavits alleging false witness testimony and naming many of the same individuals he names in the instant motion. The record for Bryant’s first § 2255 motion included affidavits from Chandar Bingham, Gershom Canady, and Lamont Payne. These affidavits alleged that Ernest Anderson, David Woodfolk, Brooks Woodfolk, and Jesse Williams provided false information or testimony against Bryant. While the instant § 2255 motion contains some additional affidavits and references seven individuals not named in his first motion, the underlying claim that witnesses provided false testimony is substantially the same. Thus, Bryant’s circumstances are clearly distinguishable from those of the petitioner in Hairston, where Hairston’s underlying conviction was vacated after his first § 2255 motion was filed and adjudicated. Hairston’s claims did not exist at the time of his first § 2255 motion. In contrast, Bryant’s claims regarding false witness testimony did exist at the time of his first § 2255 motion. Accordingly, Bryant’s assertion of “newly discovered evidence” does not overcome the bar to second and successive § 2255 motions, because the alleged facts supporting his claim existed prior to the time of his first motion. See Jefferson v. United States, No. 5:09-cr-251, 2014 WL 3721303, at *5 (E.D. N.C. July 24, 2014) (finding petitioner’s § 2255 motion successive when, even though petitioner asserted he did not discover the evidence until recently, “the facts supporting the claim [had] been in existence well before the time of petitioner’s first [motion].”); see also United States v. Winestock, 340 F.3d 200, 206-07 (4th Cir. 2003) (“a motion directly attacking the prisoner’s conviction or sentence will usually amount to a successive application” as will “new legal arguments or proffers of additional evidence.”)
In his reply to the government’s motion to dismiss, Bryant argues that the facts alleged in the affidavits of Antonio Fulford (dated March 12, 2014), Terry Suggs (dated September 1, 2013), John Bryant (dated August 13, 2013), Travis Brown (dated September 6, 2013), and Christopher Folley (dated September 6, 2013), did not exist when Bryant filed his first § 2255. However, while these affidavits were signed after I dismissed Bryant’s first § 2255 motion, the facts alleged in the affidavits existed prior to the time of Bryant’s first motion.
Finally, courts have interpreted Hairston to apply exclusively to cases involving a vacated conviction, which further defeats petitioner’s reliance on Hairston. See Dais v. United States, No. 4:03-cr-00386, 2015 WL 1862806, at * 3 (D.S.C. Apr. 23, 2015) (“Because this case does not involve a vacated conviction, the Court concludes that Hairston does not provide Petitioner with relief”); see also Dunn v. United States, No. 8:97-cr-0762, 2014 WL 3499257, at * 4 (D.S.C. July 14, 2014); Joy v. United States, 2014 WL 3054727, at *2 (D.S.C. July 3, 2014).
For the reasons stated herein, I will grant the government’s motion to dismiss and will dismiss Bryant’s § 2255 motion without prejudice. ENTER: This 9t day of May, 2015.