Opinion
1:97cr362 (JCC)
2013-09-24
MICHAEL L. MOORE, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION
This matter is before the Court on Petitioner Michael L. Moore's ("Petitioner") Motion to Invoke Discovery Process [Dkt. 137], and Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255 [Dkt. 132.] For the following reasons, the Court will deny Petitioner's motions.
I. Background
On November 21, 1997, a jury convicted Petitioner of six counts related to his involvement in a conspiracy to distribute cocaine. See Moore v. United States, Criminal No. 97-362, 2006 WL 1303111, at *1 (E.D. Va. May 8, 2006). This Court sentenced Petitioner to 360 months imprisonment, and the Fourth Circuit later affirmed his conviction. (Gov't Resp. [Dkt. 135] at 1-2.)
On June 25, 2001, this Court denied Petitioner's first request for relief under 28 U.S.C. § 2255. [Dkt. 61.] Petitioner appealed this ruling, and the Fourth Circuit denied his appeal on July 10, 2002. [Dkts. 71-72.]
Petitioner filed a second motion for relief under 28 U.S.C. § 2255 on December 22, 2006. [Dkt. 86.] This Court again denied Petitioner's request. [Dkt. 93.] Petitioner did not appeal this ruling.
Presently before the Court is Petitioner's third motion to vacate his sentence under 28 U.S.C. § 2255. Relying upon the recent Supreme Court case Lafler v. Cooper, _ U.S. _, 132 S. Ct. 1376 (2012), Petitioner contends that his attorney provided ineffective assistance in advising him to reject the prosecution's plea offer. (Mot. to Vacate at 5.) Accordingly, concludes Petitioner, his conviction is invalid. (Id.) The Government filed its Response on April 10, 2013. [Dkt. 135.] Petitioner also has an outstanding Motion to Invoke Discovery regarding his § 2255 claim. [Dkt. 137.]
In Lafler, the Supreme Court clarified that claims of ineffective assistance of counsel extend to the negotiation and consideration of plea offers even if the defendant is subsequently convicted after a fair trial. 132 S. Ct. at 1383, 1390-91.
II. Standard of Review
Under 28 U.S.C. § 2255, a prisoner in federal custody must make a threshold showing in order to file a second or successive § 2255 motion in this Court. A second or successive motion must first 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).
III. Analysis
Despite petitioner's contention otherwise, his current § 2255 motion is a successive filing subject to the certification requirements noted above. "While it is settled law that not every numerically second [§ 2255 motion] is second or successive . . . second [motions] challenging the same conviction and sentence based on a subsequent change in substantive law are deemed to be successive and require authorization from the court of appeals in order to be filed." Smith v. United States, Nos. 5:01-CR-180-1BO, 5:12-CV-91-BO, 2012 WL 6481228, at *1 (E.D.N.C. Dec. 13, 2012) (citations omitted); see also United States v. Woods, Nos. 7:09cr00043, 7:09cr00064, 2013 WL 1352370, at *1 (W.D. Va. Apr. 3, 2013)("[A] motion bringing new evidence or presenting a change in substantive law as a 'reason justifying relief' [must be] . . . construed and dismissed as a successive § 2255 motion." (citation omitted)).
Since Petitioner has not submitted any evidence of having obtained the requisite certification from the Fourth Circuit, his current § 2255 motion must be dismissed for lack of jurisdiction. See Burton v. Stewart, 549 U.S. 147, 157 (2007). Petitioner's pending discovery motion is consequently moot.
Although the Government does not argue that this action is barred under the prohibition against second or successive filings, the Court is obliged to address such jurisdictional questions sua sponte. See, e.g., Fuller v. United States, Nos. 7:10-CR-21-1-BO, 7:12-CV-302-BO, 2013 WL 556802, at *1 (E.D.N.C. Feb. 13, 2013). Because the Court finds that it is without jurisdiction to consider Petitioner's motion, it declines to address the Government's remaining arguments. (Gov't Resp. at 2-6.)
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IV. Conclusion
For the foregoing reasons, the Court will deny Petitioner's motions. An appropriate Order will issue. September 24, 2013
Alexandria, Virginia
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James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE