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United States v. Manning

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA FLORENCE DIVISION
Dec 3, 2015
CRIMINAL NO. 4:97-323-CMC (D.S.C. Dec. 3, 2015)

Opinion

CRIMINAL NO. 4:97-323-CMC

12-03-2015

United States of America, v. Treadway Levon Manning, Jr., Defendant.


OPINION and ORDER

This matter is before the court on Defendant's motion for reconsideration or, in the alternative, for a certificate of appealability. ECF No. 128. Defendant seeks the issuance of a certificate of appealability related to a previously dismissed motion for reliefunder 28 U.S.C. § 2255 in light of the Fourth Circuit's recent decision in United States v. Hunt, 615 F. App'x 795 (4th Cir. 2015).

Defendant's motion for reconsideration is denied. The § 2255 motion was a second or successive motion for relief under § 2255, as Defendant challenges his sentence based upon a change in the law subsequent to his conviction and sentencing. Defendant's failure to secure permission to file a second or successive motion in the Fourth Circuit Court of Appeals prior to the filing of the motion in this court is fatal to the outcome of any action on the motion by this court. Prior to filing a second or successive motion under § 2255, Defendant must obtain certification by a panel of the Fourth Circuit Court of Appeals allowing him to file a second or successive motion. As provided in 28 U.S.C. § 2244, "[b]efore a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A). See also Rule 9 of the Rules Governing 2255 Proceedings ("Before presenting a second or successive motion, the moving party must obtain an order from the appropriate court of appeals authorizing the district court to consider the motion . . . ."). This he had not done.

The requirement of filing a motion in the court of appeals (in this instance, the Fourth Circuit) for permission and securing permission to file a second or successive motion is jurisdictional. Therefore, Defendant's failure to secure permission from the Fourth Circuit Court of Appeals prior to filing this § 2255 motion is fatal to any action in this court. Accordingly, the court dismissed Defendant's motion as this court was without jurisdiction to consider it.

As to a certificate of appealability, the governing law provides that:

(c)(2) A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.

(c)(3) The certificate of appealability . . . shall indicate which specific issue or issues satisfy the showing required by paragraph (2).
28 U.S.C. § 2253(c). A prisoner satisfies this standard by demonstrating that reasonable jurists would find this court's assessment of his constitutional claims is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). In this case, the legal standard for the issuance of a certificate of appealability has not been met. Therefore, a certificate of appealability is denied.

IT IS SO ORDERED.

s/ Cameron McGowan Currie

CAMERON MCGOWAN CURRIE

SENIOR UNITED STATES DISTRICT JUDGE Columbia, South Carolina
December 3, 2015


Summaries of

United States v. Manning

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA FLORENCE DIVISION
Dec 3, 2015
CRIMINAL NO. 4:97-323-CMC (D.S.C. Dec. 3, 2015)
Case details for

United States v. Manning

Case Details

Full title:United States of America, v. Treadway Levon Manning, Jr., Defendant.

Court:UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA FLORENCE DIVISION

Date published: Dec 3, 2015

Citations

CRIMINAL NO. 4:97-323-CMC (D.S.C. Dec. 3, 2015)