United States District Court, E.D. Virginia, Norfolk Division
MEMORANDUM OPINION AND ORDER
Raymond A. Jackson United Males District Judge.
Maurice Wilson ("Petitioner") has submitted a
Petition to proceed in forma pauperis, and a Motion
pursuant to 28 United States Code, Section 2241 (§
2241). For the reasons set forth herein, the Court CONSTRUES
Petitioner's § 2241 Motion as a Motion filed
pursuant to Title 28, United States Code, Section 2255
(§ 2255). Having thoroughly reviewed Petitioner's
petition and § 2255 Motion, the Court finds that this
matter is ripe for judicial determination, and does not need
to hold a hearing. For the foregoing reasons,
Petitioner's petition and § 2255 Motion are DENIED.
FACTUAL AND PROCEDURAL HISTORY
February 6, 2013, a Grand Jury in the Eastern District of
Virginia indicted Petitioner on four counts. ECF No. 210 (No.
2:1 lcrl80). On October 4, 2013, Petitioner pled guilty to
Count Thirty-Nine of the Indictment. ECF No. 306 (No. 2:1
lcrl80). Count Thirty-Nine charged Petitioner with Witness
Tampering in violation of 18 U.S.C. § 1512(a)(2)(A).
Id. On March 24, 2014, Petitioner was sentenced to
imprisonment for forty months to be served consecutive to the
term imposed in case number 2:07crl29. ECF Nos. 395 & 396
(No. 2:llcrl80). The Court further directed that
Petitioner's term of imprisonment would be followed by a
three-year term of supervised release to run concurrently
with the sentence imposed in case number 2:07crl29.
October 30, 2015, Petitioner filed an Application to Proceed
in forma pauperis, as well as a Motion pursuant to
28 U.S.C. § 2241. ECF No. 1 & 2 (No. 2:17cv75). To
date, Petitioner has not filed an appeal with the United
States Court of Appeals for the Fourth Circuit.
petitioner in federal custody wishes to collaterally attack
his sentence or conviction, the appropriate motion is a
§ 2255 motion. United States v. Winestock, 340
F.3d 200, 203 (4th Cir. 2003). Section 2255 of Title 28 of
the United States Code governs post-conviction relief for
federal prisoners. It provides in pertinent part:
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct
28 U.S.C. § 2255(a).
proceeding to vacate a judgment of conviction, the petitioner
bears the burden of proving his or her claim by a
preponderance of the evidence. Miller v. United
States, 261 F.2d 546, 547 (4th Cir. 1958). Motions under
§ 2255 "will not be allowed to do service for an
appeal." Sunal v. Large, 332 U.S. 174, 178
(1947). For this reason, issues already fully litigated on
direct appeal may not be raised again under the guise of a
collateral attack. Boeckenhaupt v. United States,
537 F.2d 1182, 1183 (4th Cir. 1976).
deciding a § 2255 motion, the Court must promptly grant
a hearing "unless the motion and the files and records
of the case conclusively show that the prisoner is entitled
to no relief." 28 U.S.C. § 2255(b) (2008). Whether
a hearing is mandatory for a § 2255 Motion and whether
petitioner's presence is required at the hearing is
within the district court's sound discretion and is
reviewed for abuse of discretion. Raines v. United
States, 423 F.2d 526, 529 (4th Cir. 1970) (citing
Machibroda v. United States, 368 U.S. 487 (1962)).
petitions the Court for permission to proceed in forma
pauperis, and moves the Court to "correct" or
"vacate" his sentence pursuant to § 2241. ECF
Nos. 1& 2 (No. 2:17cv75). The Court will first address
Petitioner's motion pursuant to § 2241 because the
Court's determination on Petitioner's motion will
determine whether Petitioner's petition to proceed in
forma pauperis should be granted.
argues that because he was sentenced for witness tampering,
he should not have received an enhancement for making a
"credible threat" to use violence. Id.
Petitioner asserts that the foregoing constitutes
"double jeopardy," and that the sentencing Court
"was wrong when it enhanced [Petitioner's] sentence
by applying a 2 level enhancement for threat of
violence," which he argues is equivalent to tampering.