United States District Court, E.D. Virginia, Richmond Division
BRIAN JEROME SCOTT, Petitioner.
HAROLD W. CLARKE, Respondent.
HANNAH LAUCK UNITED STATES DISTRICT JUDGE
Jerome Scott, a Virginia inmate, submitted this 28 U.S.C.
§ 2254 Petition challenging his 2013 conviction for
voluntary manslaughter in the Southampton County Circuit
Court. ("Successive Petition," ECF No. 1). Harold
W. Clarke, the Director of the Department of Corrections,
filed a Motion to Dismiss the petition as procedurally barred
on the basis that Scott did not receive prefiling
authorization from the United States Court of Appeals for the
Fourth Circuit to bring this Successive Petition,
("Motion to Dismiss"). (ECF No. 10.) Scott did not
respond and the time to do so has expired. The Court
dispenses with oral argument because the materials before it
adequately present the facts and legal contentions, and
argument would not aid the decisional process. Accordingly,
the matters are ripe for disposition. For the reasons that
follow, the Court will grant the Motion to Dismiss.
18, 2009, a Southampton County grand jury indicted Scott on
charges for first degree murder, use of a firearm in the
commission of a murder, and possession of a firearm by a
convicted felon. (Successive Petition 10.) On June 18, 2013,
Scott resolved those charges by entering an Alford plea to
voluntary manslaughter. The Southampton County Circuit Court
imposed a ten-year sentence for that offense. (Successive
Petition 15.) While resolving those charges, Scott remained
incarcerated on a ten-year sentence for breaking and entering
and violating probation, offenses that he committed in 2007.
See Scott v. Vargo, No. 2:14CV25, 2014 WL 11514067,
at *1 (E.D. Va. Sept. 5, 2014), report and recommendation
adopted, No. 2:14CV25, 2014 WL 11512873 (E.D. Va. Oct.
8, 2014) (explaining procedural history and adopting
January 23, 2014, Scott filed his first § 2254 petition
in this Court. In that petition, Scott argued that he should
have received credit for "time spent in confinement
while awaiting trial on [his] manslaughter case."
Scott v. Vargo, No. 2:14cv25 (ECF No. 1). The
district court dismissed the petition with prejudice after
construing it as a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 and finding that Scott
failed to demonstrate a substantial showing of the denial ofa
constitutional right. Scottv. Vargo, 2014 WL
11512873, at *1. The Fourth Circuit dismissed Scott's
appeal. Scott v. Vargo, 594 Fed.Appx. 167, 168 (4th
December 12, 2018, Scott filed the instant § 2254
Petition, challenging the manslaughter conviction.
(Successive Petition 19-28.) Scott did not, however, seek
authorization from the Fourth Circuit to file this Successive
Petition. (Mot. Dismiss 6-7.)
Antiterrorism and Effective Death Penalty Act of 1996
established a "gatekeeping mechanism" that
restricted the jurisdiction of the district courts to hear
second or successive applications for federal habeas corpus
relief by prisoners challenging the validity of their
convictions and sentences. 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). The Fourth Circuit has further explained that
"regardless of how they are styled, federal habeas
petitions of prisoners who are 'in custody pursuant to
the judgment of a State court' should be treated as
"applications under section 2254' for purposes of
§ 2244(b). even if they challenge the execution of a
state sentence." In re Wright. 826 F.3d 774.
779 (4th Cir. 2016).
this Court construed Scott's first habeas petition as one
brought pursuant to § 2241, section 2254 and related
statutory provisions limiting access to federal habeas corpus
relief for state prisons remain applicable to the petition,
Id. Therefore, Scott's habeas petitions are
subject to the second-or-succcssive authorization requirement
set forth in § 2244(b)(3). Id. Because the
Court has not received authorization from the Fourth Circuit
to file the present § 2254 Petition, the Court lacks
jurisdiction to consider the Successive Petition. The Court
will grant the Motion to Dismiss (ECF No. 10) and DISMISS
WITHOUT PREJUDICE this action.
appeal may not be taken from the final order in a § 2254
proceeding unless a judge issues a certificate of
appealability ("COA"). 28 U.S.C. §
2253(c)(1)(A). 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 ...