Opinion
1:21CV763 1:09CR50-1
01-13-2022
DERRICK LEE HOLLOMAN, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
RECOMMENDATION AND ORDER OF UNITED STATES MAGISTRATE JUDGE
Joi Elizabeth Peake United States Magistrate Judge
Petitioner, a federal prisoner, submitted a document entitled as a Motion [Doc. #59] seeking compassionate release under 18 U.S.C. § 3582(c)(1)(A). However, rather than raise any argument or factor reasonably related to such a motion, Petitioner instead attacks the sentence he received in this Court as erroneous by making legal arguments that are the same as or similar to arguments the Court already rejected as meritless in prior proceedings. The document Petitioner filed is not a recognizable method for such an attack. Instead, the proper avenue for such arguments is ordinarily a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. For this reason, the Court will construe the submission as such a motion. However, the Motion cannot be further processed because court records reveal that Petitioner previously attacked the same sentence in a § 2255 motion (Case No. 1:15CV1046) where he raised the similar arguments. Consequently, Petitioner must move in the United States Court of Appeals for the Fourth Circuit for an order authorizing this district court to consider the current Motion, as required by 28 U.S.C.
§ 2255 and 28 U.S.C. § 2244. Because of this pleading failure, this particular Motion should be filed and then dismissed.
To any extent that Petitioner does have legitimate grounds to seek compassionate release not based on alleged legal errors, he may, of course, raise them by filing a proper motion. From the docket, it appears that Petitioner has filed a separate Motion for Compassionate Release [Doc. #60] which is being briefed and considered separately.
IT IS THEREFORE RECOMMENDED that this action be filed and then dismissed sua sponte for failure to obtain certification for this § 2255 application by filing a Motion for Authorization in the Court of Appeals as required by 28 U.S.C. §§ 2255 and 2244 and Fourth Circuit Local Rule 22(d) and that, there being no substantial issue for appeal concerning the denial of a constitutional right affecting the conviction nor a debatable procedural ruling, a certificate of appealability not issue.
IT IS THEREFORE ORDERED that the Clerk send Petitioner a copy of this Recommendation, instruction forms for filing § 2255 motions in this Court and Motions for Authorization in the Court of Appeals, and four copies of § 2255 motion forms (more copies will be sent on request). Petitioner should keep the original and two copies of the § 2255 motion which can be submitted in this Court if Petitioner obtains approval from the Fourth Circuit.