Opinion
CRIMINAL CASE NO. 2:06-cr-00002-MR
06-20-2016
UNITED STATES OF AMERICA, Plaintiff, v. LEONARD O'BRIEN PARKER, Defendant.
ORDER
THIS MATTER is before the Court on the Defendant's "Motion for Reconsideration." [Doc. 124].
I. PROCEDURAL BACKGROUND
The Defendant was found guilty of two counts of kidnaping during a bank robbery, in violation of 18 U.S.C. § 2113(e), two counts of possession of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii), and two counts of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). On September 13, 2007, he was sentenced to a total term of 552 months' imprisonment. [Doc. 102]. The Defendant's conviction and sentence were affirmed on appeal. [Doc. 111]. The Defendant filed a motion to vacate pursuant to 28 U.S.C. § 2255 [Doc. 117], which was denied and dismissed on August 16, 2013 [Doc. 118].
The Defendant now asks the Court to reconsider his sentence in light of Johnson v. United States, 135 S. Ct. 2551 (2015). [Doc. 124].
II. DISCUSSION
The Antiterrorism and Effective Death Penalty Act ("AEDPA"), as codified in 28 U.S.C. § 2255, provides that a "prisoner in custody under sentence of a court established by Act of Congress . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). The AEDPA, however, provides a specific limitation on a prisoner's ability to bring a second or successive motion under § 2255. Specifically, the AEDPA provides, in pertinent part, as follows:
A second or successive motion [under Section 2255] must be certified as provided in Section 2244 by a panel of the appropriate court of appeals to contain—28 U.S.C. § 2255(h).
(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.
The relief sought by the Defendant in the present motion is relief he could obtain only through a successful § 2255 proceeding. Accordingly, the Court must treat his motion as a successive motion brought pursuant to § 2255. See Gonzalez v. Crosby, 545 U.S. 524, 531, 125 S. Ct. 2641, 162 L. Ed. 2d 480 (2005); United States v. Winestock, 340 F.3d 200, 206-07 (4th Cir. 2003). The Defendant, however, has not provided any evidence that he has secured authorization from the Fourth Circuit to file a successive § 2255 motion. Therefore, this Court is without jurisdiction to consider the merits of the present § 2255 motion and it will be dismissed.
Pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, the Court declines to issue a certificate of appealability as the Defendant has not made a substantial showing of a denial of a constitutional right. 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003) (in order to satisfy § 2253(c), a petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong); Slack v. McDaniel, 529 U.S. 473, 484 (2000) (holding that when relief is denied on procedural grounds, a petitioner must establish both that the correctness of the dispositive procedural ruling is debatable, and that the petition states a debatably valid claim of the denial of a constitutional right).
IT IS, THEREFORE, ORDERED that the Defendant's Motion for Reconsideration [Doc. 124] is DISMISSED as an unauthorized, successive § 2255 motion.
IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, the Court declines to issue a certificate of appealability.
IT IS SO ORDERED.
Signed: June 20, 2016
/s/_________
Martin Reidinger
United States District Judge