United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior united States District Judge.
February 21, 2018, Ozelia Hicks, Jr. filed a "MOTION FOR
NEW TRIAL RULE 5 9 MOTION TO CORRECT THE RECORD RULE 5:11
RULE 60(B) (1) (2) (3) (4) (6) Rule 5A:36."
("Motion for New Trial, " ECF No. 1.) As explained
below, the Motion for New Trial is a successive, unauthorized
28 U.S.C. § 22S4 petition.
Hicks's First § 2254 Petition
was convicted in the Circuit Court of Chesterfield County for
obtaining money by false pretenses and was sentenced to seven
years of incarceration. See Hicks v. Clarke, No.
3;I5CVI23, 2016 WL 901265, at * 1 (E.D. Va. Mar. 3, 2016). By
Memorandum Opinion and Order entered on March 3, 2016, this
Court denied Hicks's petition for a writ of habeas corpus
pursuant co 28 U.S.C. § 2254. See id. at *9.
Hicks's Second § 2254 Petition
December 1, 2016, the Court received from Hicks a submission
entitled, "MOTION FOR NEW TRIAL PURSUANT TO CODE §
8.01-428 Rule 60(b)." See Hicks v. Virginia,
No. 3:16CV946, 2017 WL 1963900, at *1 (E.D. Va. May 11, 2017)
. By Memorandum Opinion and Order entered on May 11, 2017,
the Court dismissed the motion as a successive, unauthorized
28 U.S.C. § 2254 petition. Id. at *2.
Hicks's Motion for New Trial
February 20, 2018, the Court received Hicks's Motion for
New Trial. In the body of his Motion for New Trial, he
indicates that he moves "to set the judgment aside
pursuant to Rule 5A:3 6 (additional after-discovered
evidence) material exculpatory factual evidence) material
fact, omitted key facts, that merit retrial bases on
'Fraud' Rule 60 (b) (1) (2) (3) (4) (6) ." (Mot.
New Trial 1 (capitalization corrected) (emphasis omitted).)
While it is not clear by which procedural vehicle Hicks
intends to bring his motion, it is abundantly clear that
Hicks continues to attack the sufficiency of the evidence and
other errors in the criminal proceeding leading to his state
conviction. (See id. at 2-7.) As explained below,
Hicks's Motion for New Trial must be treated as a
successive, unauthorized 28 U.S.C. § 2254 petition.
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) (internal quotation marks omitted). 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). This Court
lacks jurisdiction to entertain a second 28 U.S.C. §
2254 petition from Hicks absent authorization from the United
States Court of Appeals for the Fourth Circuit. See 28 U.S.C.
§ 2244(b)(3)(A). Hicks cannot avoid that result by
styling his present motion as a "MOTION FOR NEW TRIAL
RULE 59 MOTION TO CORRECT THE RECORD RULE 5:11 RULE 60 (B)
(1) (2) (3) (4) (6) Rule 5A:36." See Melton v.
United States, 359 F.3d 855, 857 (7th Cir. 2004)
(emphasizing that inmates may not circumvent the limitations
on successive petitions simply by inventive labeling);
United States v. Winestock, 340 F.3d 200, 207 (4th
Cir. 2003). "Call it a motion for a new trial, arrest of
judgment, mandamus, prohibition, coram nobis, coram vobis,
audita querela, 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, 359 F.3d at
857 (citing Thurman v. Gramley, 97 F.3d 185, 186-87
(7th Cir. 1996)).
current Motion for New Trial challenging his state conviction
falls squarely within the ambit of 28 U.S.C. § 2254(a).
See Smith v. Virginia, Nos. 3:12CV148, 3:15CV182,
2015 WL 1401677, at *1 (E.D. Va. Mar. 25, 2015) (explaining
that a motion is "a successive 'habeas corpus
application' if it 'seeks vindication' of a
'claim' for relief from the criminal judgment,
regardless of the title on the motion" (quoting
Gonzalez v. Crosby, 545 U.S. 524, 530-32
(2005))). Hicks has not obtained authorization from
the United States Court of Appeals for the Fourth Circuit to
file a successive § 2254 petition challenging his state
convictions and this Court lacks jurisdiction to entertain
the present § 2254 petition. Accordingly, the action
will be dismissed without prejudice for lack of jurisdiction.
appeal may not be taken from the final order in a § 2254
proceeding unless a judge issues a certificate of
appealability. 28 U.S.C. § 2253 (c) (1) (A) . A
certificate of appealability 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) ...