Opinion
Case No. 3:15-cr-13-KRG-KAP Case No. 3:18-cv-178-KRG-KAP
09-13-2018
UNITED STATES OF AMERICA v. WILLIE G. GULLEY, JR., Defendant
Report and Recommendation
Recommendation
Movant Willie Gulley has filed a second pro se motion to vacate his sentence, ECF no. 45, and the motion was referred to me under 28 U.S.C.§ 636(b)(3). The motion to vacate should be summarily dismissed without a certificate of appealability.
Report
For the history of petitioner's first motion to vacate, also docketed at Case No. 3:15-cv-308-KRG-KAP, see my discussion in the Report and Recommendation at ECF no. 21. Petitioner's first motion to vacate was decided on the merits on May 24, 2018, see ECF no. 36, and there was no appeal.
This motion repeats some of the same claims raised in the first motion, see ECF no. 20, and adds some new claims. If the court had jurisdiction, the motion would be untimely. A motion to vacate filed under 28 U.S.C.§ 2255 is subject to a one-year limitations period that runs from: (1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C.§ 2255(f). See generally United States v. Green, 898 F.3d 315, 318 (3d Cir.2018). Only Subsection 2255(f)(1) is implicated by the instant motion to vacate and the one year period from the date on which movant's judgment of conviction became final expired approximately two years ago.
But because the motion to vacate is a second or successive one the movant must satisfy 28 U.S.C.§ 2244(b)(3)(A)'s procedural requirement and seek authorization from the Court of Appeals before proceeding in the district court. Ordinarily I would sua sponte recommend transferring a second motion to vacate to the Court of Appeals, but the motion as it stands contains no cognizable claims and there is no value in spending further time of this court and the Court of Appeals.
The movant can if he wishes file a motion for authorization under 28 U.S.C.§ 2244(b)(3)(A) directly in the Court of Appeals. Movant should note Section 2255's substantive requirements for second motions to vacate, namely: (h) 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 factfinder 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(h).
Because a certificate of appealability should not be issued unless the movant "has made a substantial showing of the denial of a constitutional right," 28 U.S.C.§ 2253(c)(2), no certificate of appealability should be issued.
Pursuant to 28 U.S.C.§ 636(b)(1), the parties are given notice that they have fourteen days to serve and file written objections to this Report and Recommendation. DATE: 13 September 2018
/s/_________
Keith A. Pesto,
United States Magistrate Judge Notice to counsel of record by ECF and by U.S. Mail to:
Willie G. Gulley Jr., 18-00722
Cambria County Prison
425 Manor Drive
Ebensburg, PA 15931