Opinion
5:93-CR-42-BO-3
07-01-2017
UNITED STATES OF AMERICA v. ISSAC PERRY
ORDER
This cause comes before the Court on defendant's motion seeking a downward departure under 18 U.S.C. § 3553(a)(1). [DE 79]. The government has responded, [DE 83], and the matter is ripe for disposition.
The Antiterrorism and Effective Death Penalty Act of 1996 provides that a second or successive § 2255 petition must be certified by a panel of the appropriate court of appeals to contain either "newly discovered evidence . . . or 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(h)(1)-(2). Absent pre-filing authorization, this Court lacks jurisdiction to consider a second or successive petition. United States v. Winestock, 340 F.3d 200, 205 (4th Cir. 2003).
The relief which defendant seeks in his motion is that which would be provided by a successful motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. Petitioner has previously filed a motion pursuant to 28 U.S.C. § 2255 which was denied on the merits. Therefore, this additional motion must be properly construed as a second or successive § 2255 motion. See Winestock, 340 F.3d at 207 (in determining whether a motion should be construed as one under § 2255. "[t]here may be no infallible test . . . but a relatively straightforward guide is that a motion directly attacking the prisoner's conviction or sentence will usually amount to a successive application.").
Generally, a court must notify a petitioner before recharacterizing a motion as being subject to § 2255's requirements. Castro v. United States, 540 U.S. 375 (2003). However, this "notice before recharacterization" requirement does not apply to situations in which a petitioner has already had a previous § 2255 motion dismissed on the merits. See United States v. Emmanuel, 288 F.3d 644, 650 (4th Cir. 2002). Because this motion is properly construed as a second or successive § 2255 petition, and is therefore procedurally barred, notice to petitioner is not required and it is properly denied. See also United States v. Brown, 132 F. App'x 430, 431 (4th Cir. 2005) (unpublished).
Therefore, for the foregoing reasons, defendant's motion motions [DE 79] is DENIED. SO ORDERED, this 1 day of July, 2017.
/s/_________
TERRENCE W. BOYLE
UNITED STATES DISTRICT JUDGE