United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (Dismissing Successive 28 U.S.C.
§ 2255 Motion)
E. HUDSON, SENIOR UNITED STATES DISTRICT
Memorandum Opinion and Order entered on June 22, 2004, the
Court denied a 28 U.S.C. § 2255 motion filed by
Petitioner. (ECF Nos. 117, 118.) By Order entered on April
27, 2016, the United States Court of Appeals For the Fourth
Circuit granted Petitioner authorization to file a second or
successive § 2255 motion for his ACCA claim based on
Johnson v. United States, 135 S.Ct. 2551 (2015).
(ECF No. 170, at 1.) Subsequently, by Memorandum Opinion and
Order entered on February 15, 2018 the Court granted the
second § 2255 motion to the extent that Petitioner's
sentence was reduced to 120 months on Count Six. (ECF Nos.
197, 198.) Petitioner appealed, and on July 11, 2018, the
Fourth Circuit affirmed this Court's decision in part and
dismissed the remainder of the appeal. (ECF No. 203.)
October 30, 2018, Petitioner filed a "MOTION TO LEAVE AN
AMEND THE ORIGINAL PLEADING GROUND SEVEN WHICH RELATE BACK TO
COMMON CORE OF FACTS UNDER 15(c)(1)(B)." ("Rule 15
Motion," ECF No. 207.) Petitioner clearly continues to
attack his sentence as unconstitutional. As explained below,
despite the labeling of his Rule 15 Motion, it 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 Or., 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.
Rule 15 Motion, Petitioner contends that his sentence under
the United States Sentencing Guidelines is erroneous because
he should not have received a cross-reference for murder and
provides caselaw from 2010 and 2013 that he believes supports
a claim from his original § 2255 motion. (§ 2255
Mot. 2-3.) It is evident that his Rule 15 Motion is another
attack on his 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. Indeed, after he filed his Rule
15 Motion, the Fourth Circuit denied Petitioner permission to
file a successive § 2255 motion. (ECF No. 208.)
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. The Clerk will be directed to assign the matter
(ECF No. 207) a civil action number for the administrative
convenience of the Court. Petitioner's Rule 15 Motion
(ECF No. 207) 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. Estelle,463 U.S. 880, 893 ...