United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (DISMISSING SUCCESSIVE 28 U.S.C.
§ 2255 MOTION)
E. HUDSON UNITED STATES DISTRICT JUDGE
a jury trial, Andre D. Whitfield was found guilty of several
drug and firearm offenses. (ECF No. 33, at 1-2.) By
Memorandum Opinion and Order entered on May 14, 2012, the
Court denied a motion under 28 U.S.C. § 2255 filed by
Whitfield. (ECF Nos. 92-93.) By Memorandum Opinion and Order
entered on October 23, 2013, the Court dismissed an
unauthorized second or successive § 2255 motion filed by
Whitfield. (ECF Nos. 112-113.) On August 21, 2017, the Court
received a document entitled "Motion for Review of Plain
Error" from Whitfield. (ECF No. 127.) Despite the
labeling of his motion, Whitfield attacks several of his
convictions as unconstitutional. As explained below,
Whitfield's Motion for Review of Plain Error must be
treated as a successive, unauthorized 28 U.S.C. § 2255
Antiterrorism and Effective Death Penalty Act of 1996
restricted 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).
United States Court of Appeals for the Fourth Circuit has
instructed 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). A motion pursuant to 28
U.S.C. § 2255 "provides the primary means of
collateral attack on a federal sentence." Pack v.
Yusuff, 218 F.3d 448, 451 (5th Cir. 2000) (quoting
Cox v. Warden, Fed. Del. Ctr., 911 F.2d 1111, 1113
(5th Cir. 1990)). "Call it a motion for a new trial,
arrest of judgment, mandamus, prohibition, coram nobis, coram
vobis, audita querula, certiorari, capias, habeas corpus,
ejectment, quare impedit... or an application for a
Get-Out-of-Jail Card; the name makes no difference. It is
substance that controls." Melton v. United
States, 359 F.3d 866, 857 (7th Cir. 2004) (citation
omitted). "Any 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 States, 264
F.3d 723 (7th Cir. 2001)). In other words, a "motion is
a second or successive [habeas] petition if it in substance
or effect asserts or reasserts a federal basis for relief
from the petitioner's underlying conviction."
United States v. McCalister, 453 Fed.Appx. 776, 778
(10th Cir. 2011) (alteration in original) (quoting
Spitznas v. Boone, 464 F.3d 1213, 1215 (10th Cir.
Motion for Review of Plain Error, Whitfield contends that the
Government constructively amended Counts Five and Six in the
Indictment returned against Whitfield, and that this
constructive amendment violated Whitfield's rights under
the Fifth and Sixth Amendments. (ECF No. 127, at 2.)
Whitfield contends that his motion is brought pursuant to
Federal Rule of Criminal Procedure 52(b) which defines
"harmless error" and "plain error" on
direct appeal, but he fails to demonstrate how this rule
would permit him to collaterally attack his conviction and
sentence at this late juncture. See United States v.
Lay, No. PJM 97-0313, 2014 WL 1383856, at *1 (D. Md.
Apr. 7, 2014). Moreover, it is evident that Whitfield's
Motion for Review of Plain Error is in effect another attack
on his convictions and sentence and must be treated as a
successive § 2255 motion. See Id. The Court has
not received authorization from the Fourth Circuit to file
the present § 2255 motion. Therefore, the action will be
dismissed for want of jurisdiction. The Clerk will be
directed to file the present action as an unauthorized
successive motion under 28 U.S.C. § 2255.
Whitfield's Motion to Amend the Plain Error Petition (ECF
No. 129) will be denied.
appeal may not be taken from the final order in a § 2255
proceeding unless a judge issues a certificate of
appealability ("COA"). 28 U.S.C. §
2253(c)(1)(B). A COA will not issue unless a prisoner makes
"a substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). This requirement is
satisfied only when "reasonable jurists could debate
whether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues
presented were 'adequate to deserve encouragement to
proceed further.'" Slack v. McDaniel, 529
U.S. 473, 484 (2000) (quoting Barefoot v. ...