Opinion
Case No.: 2:98-cr-322-PMD-2
01-18-2017
Benjamin Gibbs, Petitioner, v. United States of America, Respondent.
ORDER
Benjamin Gibbs seeks to vacate, set aside, or correct his federal prison sentence under 28 U.S.C. § 2255 (ECF No. 1296). The United States ("Government") has filed a motion to dismiss (ECF No. 1315). The Government asserts, inter alia, that the Court should dismiss Gibbs' § 2255 motion because it is "second or successive" and the United States Court of Appeals for the Fourth Circuit has not given Gibbs permission to file it. See 28 U.S.C. §§ 2244(b), 2255(h). The Court agrees. Gibbs sought that permission, but the Fourth Circuit denied his request. In re Gibbs, No. 16-3175 (4th Cir. Jan. 18, 2017). As such, this Court lacks jurisdiction. See United States v. Winestock, 340 F.3d 200, 205 (4th Cir. 2003) ("In the absence of pre-filing authorization, the district court lacks jurisdiction to consider" a successive § 2255 motion). Thus, Gibbs' § 2255 motion is DISMISSED without prejudice.
Gibbs filed a § 2255 motion attacking his sentence in 2002. The Court denied the motion.
A certificate of appealability will not issue absent "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A prisoner satisfies this standard by demonstrating that reasonable jurists would find both that the merits of his constitutional claims are debatable and that any dispositive procedural rulings by the district court are also debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484, (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). Gibbs has not satisfied that standard. Accordingly, the Court declines to issue a certificate of appealability. See R. 11(a), § 2255 Rules. --------
AND IT IS SO ORDERED.
/s/_________
PATRICK MICHAEL DUFFY
United States District Judge January 18, 2017
Charleston, South Carolina