United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad, Senior United States District Judge
Alexander White, a federal inmate proceeding pro se, has
filed a motion to vacate, set aside or correct the sentence
under 28 U.S.C. § 2255, seeking "[v]acatur of the .
judgment of conviction [and] dismissal of the indictment with
prejudice." After consideration of the record, the court
concludes that the motion must be summarily dismissed as
faced a federal indictment charging him with four counts of
making extortionate communications through interstate and
foreign commerce, in violation of 18 U.S.C. §§
875(b) and 2. The charges were based on four emails that
White sent to his ex-wife, threatening injury to her if she
did not send him alimony payments. White pleaded not guilty.
At trial, the government presented testimony from, among
others, his ex-wife and experts in internet tracking of
emails. White testified in his defense that he did not send
the emails and blamed a friend, Sabrina Gnos, for using his
account to send the emails to frame him. White admitted
asking Gnos to find someone to intimidate his ex-wife to
resume depositing money in his account. The jury found White
guilty of three counts of making extortionate threats and one
count of the lesser included offense of sending a threatening
email. The court sentenced White to three prison terms of 92
months and one term of 60 months, to run concurrently to each
other but consecutive to any other sentences. The judgment
was affirmed. See United States v. White, 810 F.3d
212, 219-32 (4th Cir. 2016).
then filed a § 2255 motion, raising numerous claims of
ineffective assistance of counsel, actual innocence claims
alleging insufficient evidence, prosecutorial misconduct
claims, Fourth Amendment claims that the government accessed
email and Facebook accounts without a search warrant, and
various court error claims. The court concluded that
White's claims lacked merit and granted the
government's motion to dismiss. United States v.
White, No. 7:13CV00013/7:16CV80934, 2017 WL 2378018
(W.D. Va. May 31, 2017), affd, 708 Fed.Appx. 130 (4th Cir.
2018), cert denied. No. 17-8238 (May 3, 2018).
current motion, White contends that the criminal judgment and
the indictment must be vacated, based on newly discovered
evidence allegedly showing that: (1) the government falsified
affidavits in support of search warrants used to obtain
evidence adduced and/or testified to at trial; (2) White was
"tortured" in prison, which caused him to develop
post-traumatic stress disorder and lack the mens rea
to commit the charged offenses; (3) the government either
failed to turn over the warrant affidavits and torture
information as exculpatory evidence, in violation of
Brady,  or knowingly presented false testimony;
and (4) counsel was ineffective for failing to discover and
present this information. White alleges that he exercised due
diligence to discover this information that was previously
unavailable to him and should, thus, be entitled to present
claims based on it in a second § 2255 motion. The court
finds no merit to these arguments.
federal district court may consider a second or successive
§ 2255 motion only upon specific certification from the
United States Court of Appeals for the Fourth Circuit that
the claims in the motion meet certain criteria. See §
2255(h). Specifically, a successive § 2255 motion will
be certified under this section for consideration only if it
contains 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 ... a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
U.S.C. §§ 2244(h)(1) and (2).
other hand, "not every numerically second petition is a
'second or successive' petition within the meaning of
the AEDPA" so as to require certification under §
2255(h). In re Williams, 444 F.3d 233, 235 (4th Cir.
2006). "[W]hen the factual basis for a claim does not
arise until after a prior petition was filed, the new
petition does not constitute a successive one." See,
e.g., United States v. Hairston. 754 F.3d 258, 262
(4th Cir. 2014) (holding that subsequent § 2255 motion
challenging sentence enhancement, based on new
fact-post-§ 2255 vacatur of a predicate conviction-was
not successive). However, Hairston does not provide
White grounds to pursue this second § 2255 motion
without certification from the court of appeals.
courts have interpreted Hairston to apply
exclusively to cases involving a post-sentencing vacatur of a
predicate, prior conviction. 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. No. 4:06-CR-01317-TLW, 2014 WL
3054727, at *2 (D.S.C. July 3, 2014). White's current
claims do not involve a vacated prior conviction that
affected his sentence in this court.
even if Hairston extends to other types of claims,
White's claims do not involve any factual basis that
occurred after his initial § 2255 was filed. Rather, the
information referenced in White's instant § 2255
motion (the search warrant affidavits, the alleged prison
torture evidence, and its alleged effect on White's
mental health at the time of the offense conduct) are facts
and/or events that existed or had already occurred when
White's first § 2255 motion was filed and
adjudicated. See Hairston, 754 F.3d at 262. Indeed,
in his initial § 2255 motion, White presented claims
substantially similar to his present ones. His current §
2255 motion essentially seeks to renew those prior claims
using additional, recently obtained documentation in support.
Such a second-filed habeas motion, based on
preexisting facts that the defendant only learned of
late-whether because of alleged government concealment or
other factors-is "precisely the type of situation"
for which § 2255(h) was designed to address.
See, e.g., Evans v. Smith, 220 F.3d 306,
323 (4th Cir. 2000) (applying same principle to second §
2254 habeas petition); see also Gage v.
Chappell 793 F.3d 1159, 1165 (9th Cir. 2015)
(distinguishing between claims in which the factual predicate
came into existence after the first habeas petition
was filed and claims that qualify as second or successive
because they were ripe at the time the first habeas
petition was filed).
stated reasons, the court concludes that White's current
§ 2255 is a successive one under § 2255(h) which
this court cannot consider absent certification by the United
States Court of Appeals for the Fourth Circuit. White has not
provided evidence that he has obtained this certification.
Accordingly, the court must dismiss his current motion
without prejudice as successive. An appropriate order will
issue this day.
Clerk is directed to send copies of this memorandum opinion
and accompanying order to the defendant and counsel of record
for the government.