United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (DISMISSING RULE 36 MOTION AS A
SUCCESSIVE 28 U.S.C. § 2255 MOTION)
E. Hudson United States District Judge
Memorandum Opinion and Order entered on August 29, 2013, this
Court denied Kenneth Phipps's motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §
2255 ("§ 2255 Motion"). (ECF Nos. 48-49.) This
matter now comes before the Court on Phipps's
"MOTION FOR CORRECTION OF THE PRESENTENCE INVESTIGATION
REPORT PER RULE 36" ("Rule 36 Motion, " ECF
No. 51). For the reasons stated below, the Court finds that
Phipps's Rule 36 Motion is an unauthorized, successive
§ 2255 motion.
Rule of Criminal Procedure 36 provides, "[a]fter giving
any notice it considers appropriate, the court may at any
time correct a clerical error in a judgment, order, or other
part of the record, or correct an error in the record arising
from oversight or omission." Fed. R. Crim. P. 36.
Nevertheless, the Court narrowly defines clerical errors.
"[A] clerical error must not be one of judgment or even
of misidentification, but merely of recitation, of the sort
that a clerk or amanuensis might commit, mechanical in
nature." United States v. Burd, 86 F.3d 285,
288 (2d Cir. 1996) (alteration in original) (quoting
United States v. Werber, 51 F.3d 342, 347 (2d Cir.
1995)); see United States v. Kubinski, 707 Fed.Appx.
195, 195 (4th Cir. 2017) ("Rule 36 motions, however,
apply only to clerical errors and are not the proper vehicle
for challenging the substance of the information in a
presentence report; such challenges must be filed within 14
days of receiving the report." (citing Fed. R. Crim. P.
Rule 36 Motion, Phipps argues that his Presentence Report
("PSR") contains errors that resulted in his
Criminal History being incorrectly calculated. (Rule 36 Mot.
1.) Specifically, Phipps argues that the PSR incorrectly
determined that Phipps's sentences for his Virginia
convictions of uttering counterfeit currency and possession
of marijuana should not have qualified as prior sentences for
two one-point increases in Phipps's Criminal History
under United States Sentencing Guidelines ("USSG")
Section 4A1.1(c). (Id. at 3-4.) Phipps argues that
because he only received a year's probation for each
conviction, this was contrary to USSG Section 4A 1.2(c),
which requires that the Court only increase a defendant's
Criminal History when, among other things, "the sentence
was a term of probation of more than one year or a term of
imprisonment of at least thirty days." United States
Sentencing Guidelines § 4A1.2(c) (U.S. Sentencing
Comm'n 2009).Here, any alleged error that occurred
"was not one of transcription, but of legal knowledge or
analysis, " and thus is not amenable to correction under
Rule 36.United States v. Gibson, 356 F.3d
761, 766 n.3 (7th Cir. 2004).
Phipps brings his motion under the guise of correcting a
purported clerical error in his PSR, the Court discerns that
he truly attempts to challenge his sentence calculation. 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)). The
Antiterrorism and Effective Death Penalty Act of 1996
restricts 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, 656-57 (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).
arguments in his Rule 36 Motion make it clear that he
continues to attack the validity of his sentence. Therefore,
Phipps's Rule 36 Motion falls outside the scope of Rule
36 and within that of 28 U.S.C. § 2255. Phipps cannot
avoid the bar against successive petitions merely by
inventive labeling. See 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 v. United
States, 359 F.3d 855, 857 (7th Cir. 2004) (citing
Thurman v. Gramley, 97 F.3d 185, 186-87 (7th Cir.
1996)). "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)). The Rule 36 Motion challenges the
calculation of Phipps's Criminal History under the USSG
and the legality of his sentence. Despite his inventive
labeling, Phipps's motion falls within the scope of 28
U.S.C. § 2255. Thus, the Clerk will be directed to file
the Rule 36 Motion as a successive motion pursuant to 28
U.S.C. § 2255. Because the Fourth Circuit has not
authorized this Court to hear Phipps's successive §
2255 motion, the Rule 36 Motion (ECF No. 51) will be
dismissed for want of jurisdiction. A certificate of
appealability will be denied.
appropriate Order will accompany this Memorandum Opinion.
 Phipps also argues that he was not
actually convicted of the possession of marijuana charge.
(Rule 36 Mot. 5.) However, from Phipps's own exhibit, it
is clear he was found "guilty as charged" for
possession of marijuana in the Mecklenburg County District
Court. (See Id. Ex. C, at 2, ECF No. 51-3.)
 Nevertheless, the Court has reviewed
the PSR and Phipps's arguments and notes no error