United States District Court, W.D. Virginia, Roanoke Division
Elizabeth K. Dillon, United States District Judge
2010, William White was convicted by a jury on two counts of
transmitting in interstate commerce threats to injure or
intimidate individuals and one count of intimidation to
influence, delay, or prevent testimony. In 2013, White filed
a motion under 28 U.S.C. § 2255, which was denied on the
merits. Now before the court are a variety of motions,
including a motion expressly filed under § 2255 and a
Rule 60 motion to reconsider the denial of White's first
§ 2255 motion. These two motions are successive to
White's first § 2255 motion, and White has not
obtained authorization from the court of appeals to file
them. (See Orders Denying Authorization, Dkt. Nos.
393, 395.) Consequently, they will be dismissed for lack of
second or successive motion must be certified as provided in
28 U.S.C. § 2244 by a panel of the appropriate court of
appeals to contain:
(1) 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;
(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
28 U.S.C. § 2255(h)(1), (2). In the absence of such
authorization, the court lacks jurisdiction to consider a
§ 2255 motion. Id. § 2244(b)(3)(A)
(“Before 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.”); United States v. Allred, 942
F.3d 641, 646 (4th Cir. 2019) (“Because Allred had
already filed a § 2255 motion, he needed this
court's authorization to file a second or successive
every numerically second § 2255 motion is “second
or successive” within the meaning of § 2255(h).
See In re Williams, 444 F.3d 233, 235 (4th Cir.
2006). “For example, when a first petition is dismissed
on technical grounds, such as failure to exhaust state
remedies, it is not counted; thus, a subsequent petition is
not considered second or successive.” Id.
(citing Slack v. McDaniel, 529 U.S. 473, 485-89
(2000)). White's first § 2255 motion raised a claim
for ineffective assistance of counsel and was denied on the
merits. (See 4/11/13 Mem. Op., Dkt. No. 344.)
White's second § 2255 motion, alleging a
Brady violation for failure to disclose exculpatory
evidence, is also a direct attack on the legality of his
underlying conviction. See United States v.
Winestock, 340 F.3d 200, 207 (4th Cir. 2003) (“[A]
motion directly attacking the prisoner's conviction or
sentence will usually amount to a successive application . .
. .”) (abrogated in part on other grounds by United
States v. McRae, 793 F.3d 392 (4th Cir. 2015))
(abrogation recognized by United States v.
Richardson, 776 Fed.Appx. 106 (4th Cir. 2019)).
Therefore, White's § 2255 motion must be dismissed
for lack of jurisdiction.
similar reasons, White's motion for reconsideration is
also a successive collateral attack. “Using Rule 60(b)
to present new claims for relief from a state court's
judgment of conviction” or to present “new
evidence in support of a claim already litigated, ”
Gonzalez v. Crosby, 545 U.S. 524, 531 (2005), as
White does in his motion, “would impermissibly
circumvent the requirement that a successive habeas petition
be precertified by the court of appeals as falling within an
exception to the successive-petition bar.” Id.
at 532. White's Rule 60 motion is an impermissible
attempt to avoid the restrictions on successive § 2255
issuing a final order adverse to a § 2255 movant, the
court must issue or deny a certificate of appealability.
See Fed. R. Gov. § 2255 Proc. 11(a). A
certificate of appealability may issue only if the movant has
made a substantial showing of the denial of a constitutional
right. 28 U.S.C. § 2253(c)(2). When, as here, relief is
denied on procedural grounds, the movant must demonstrate
both that the dispositive procedural ruling is debatable, and
that the motion states a debatable claim of the denial of a
constitutional right. Gonzalez v. Thaler, 565 U.S.
134, 140-41 (2012); United States v. Elliot, ___
Fed.Appx. ___, 2019 WL 6321279, at *1 (4th Cir. Nov. 26,
2019) (applying this standard to a district court's
dismissal of a § 2255 motion as second or successive).
The court declines to issue a certificate of appealability
because White has not made a substantial showing of the
denial of a constitutional right and reasonable jurists would
not find the court's procedural ruling debatable or
also before the court is White's motion to unseal and to
authorize disclosure of grand jury proceedings. In a
subsequent motion, White states that the former motion was
docketed in the wrong case and moves to compel the clerk to
docket it in the correct case. White does not indicate what
case number or case name he is referring to as the correct
case, and the court is unable to ascertain the case to which