Opinion
CR.: 7:99-769-GRA.
December 22, 2005
ORDER (Written Opinion)
This matter is before this Court on petition of Scottie Jenkins pursuant to 28 U.S.C. § 2255. For the reasons expressed below, the petition under § 2255 is dismissed.
I. BACKGROUND
On October 27, 1999, petitioner pled guilty before the undersigned to one count of conspiracy to distribute cocaine and cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846. At the plea hearing, and in his memorandum in support of this motion, petitioner admitted to possessing 83 grams of crack cocaine, 200 grams of powder cocaine, and a large sum of cash. As a result petitioner's acceptance of responsibility, on March 21, 2000, when petitioner appeared for sentencing before the undersigned, he received a three level reduction under the Sentencing Guidelines. Further, defendant was sentenced to the lowest end of the guideline range. He was ordered to be imprisoned for a period of two hundred and sixty-two (262) months to be followed by five years of supervised released.
Petitioner appealed his sentence alleging this Court failed to satisfy the minimum requirements of Fed.R.Crim.P. 11 when is accepted his guilty plea and that his sentence of 262 months was invalid pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000). See United States v. Jenkins, 26 Fed. Appx. 337 (2002). The Fourth Circuit affirmed in an unpublished decision. Id. Petitioner then filed a motion pursuant to 28 U.S.C. § 2255 on January 13, 2003. This Court denied that petition on July 16, 2003. The Fourth Circuit dismissed the petitioner's appeal on February 20, 2004. Petitioner filed the current § 2255 motion to vacate in this matter on December 14, 2005.
United States v. Jenkins, 7:03-0131-13AK.
II. DISCUSSION
Petitioner has filed the instant § 2255 petition without proper permission from the U.S. Court of Appeals for the Fourth Circuit. Under the Antiterrorism and Effective Death Penalty Act of 1996, an individual is not permitted to "file a second or successive . . . § 2255 motion to vacate sentence without first receiving permission to do so from the appropriate circuit court of appeals." In Re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997) (citations omitted). Section 2255 provides:
[a] second or successive motion must be certified as provided in section 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 fact finder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.28 U.S.C. § 2255; See also 28 U.S.C. §§ 2244, 2253.
This Court finds that the present petition for relief under § 2255 qualifies as a second or successive petition. In the absence of permission to file from the U.S. Court of Appeals for the Fourth Circuit this petition must be dismissed.
IT IS THEREFORE ORDERED that petitioner's motion to vacate is DISMISSED without prejudice as a second or successive petition.
IT IS SO ORDERED.