IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
March 7, 2013
UNITED STATES OF AMERICA
The opinion of the court was delivered by: Richard D. Bennett United Satates District Judge
On February 28, 2013, Petitioner Darryl Taylor ("Taylor") filed a "Notice to the Court in the Entrust [sic] of a Fair and Just Consideration of Justice." ECF No. 42. He filed an "Addendum" to the Notice on March 4, 2013, arguing that a Supreme Court ruling in March of 2012,*fn1 seemingly provides him "newly discovered evidence" upon which to raise an Sixth Amendment claim to attack his September 22, 2008 conviction in a timely manner. See 28 U.S.C. § 2255(f)(3).
This case requires the Court to determine whether Taylor's post-judgment filing must be construed as an unauthorized and successive § 2255 motion attacking his conviction because he has previously filed a § 2255 application*fn2 and has not obtained court of appeals certification for the present filing as required under 28 U.S.C. § 2255(h) or, alternatively, a proper motion under Rule 60(b) of the Rules of Civil Procedure seeking a remedy for some defect in the collateral review process itself. The answer to this question is important because it has jurisdictional implications. If Taylor's filing is construed as an unauthorized and successive § 2255 motion directly attacking his conviction or sentence, then this court lacks jurisdiction to consider it. United States v. Winestock, 340 F.3d 200, 206 (4th Cir. 2003).
This filing represents another direct attack on Taylor's federal conviction. Taylor is asking this Court to correct an allegedly illegal and unconstitutional sentence. He claims that (1) he received ineffective assistance of counsel in his criminal case because counsel did not file a brief under Anders v. California, 386 U.S. 738 (1967); (2) his due process rights were violated due to prosecutorial delay; (3) the indictment did not follow the procedures set out under the Federal Rules of Criminal Procedure; (4) the indictment did not charge him with a cognizable offense because the elements were not set out in the indictment; (5) his sentence was improperly enhanced by incorrect information prepared in his pre-sentence report; (6) he is "actually innocent" of his sentence enhancement; (7) the Court has the discretion to depart from the mandatory minimum term under 18 U.S.C. § 3553(A) and may impose a lesser sentence; (8) his sentence is illegal; (9) the Court abused its discretion when it did not advise him of the minimum sentence it could have imposed; (10) the charge under 18 U.S.C. § 922(g)(1) was selectively enforced against him; and (11) his illegal sentence cannot be waived due to substantive constitutional violation. ECF No. 42.
The Court has examined the pleading to determine whether it is properly considered a Rule 60(b) Motion and concludes that it should not. This Circuit has held that Rule 60(b) motions should be treated as successive applications for post-conviction relief under 28 U.S.C. § 2255 when they present claims that are equivalent to additional habeas claims." Hunt v. Nuth, 57 F.3d 1327, 1339 (4th Cir. 1995). Taylor does not raise a challenge to the integrity of the Court's previous denial of his prior § 2255 application, rather his challenge implicates the validity of his underlying conviction and sentence. See Williams v. Chatman, 510 F.3d 1290, 1295 (11th Cir. 2007) (contention that district court erred in refusing additional briefing was a proper subject of a Rule 60(b) motion). Therefore, Taylor's pleading is properly construed as a successive § 2255 motion. See Winestock, 340 F.3d at 207 (a motion directly attacking the inmate's conviction or sentence will usually amount to a successive application); see also Rodwell v. Pepe, 324 F.3d 66, 70 (1st Cir. 2003); Unites States v. Terrell, 141 Fed. App'x. 849, 850 (11th Cir. 2005) (motion raising brand new substantive claims for relief on the merits and not presented in defendant's initial motion to vacate, were properly treated by district court as successive motion to vacate sentence).
Successive § 2255 motions may not be filed absent authorization to do so from the Fourth Circuit Court of Appeals. See 28 U.S.C. § 2244(b)(3)(A) & 2255(h); In re Avery W. Vial, 115 F.3d 1192, 1197-98 (4th Cir. 1997) (en banc). Taylor has provided no evidence that he received authorization to file a successive Motion to Vacate by the appellate court as required pursuant to 28 U.S.C. § 2244(b)(3)(A).*fn3
An inmate who filed a Motion to Vacate has no absolute entitlement to appeal a district court's denial of his Motion. See 28 U.S.C. § 2253(c) (1). "A certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right." Id. at §2253(c) (2). The Defendant "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Tennard v. Dretke, 542 U.S. 274, 282, (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484, (2000)), or that "the issues presented were 'adequate to deserve encouragement to proceed further,'" Miller-El v. Cockrell, 537 U.S. 322, 335-36, (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983).
When a district court dismisses a motion to vacate solely on procedural grounds, a Certificate of Appealability will not issue unless the Petitioner can demonstrate both "(1) 'that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right' and (2) 'that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.'" Rose v. Lee, 252 F.3d 676, 684 (4th Cir. 2001) (quoting Slack, 529 U.S. at 484 (2000)). Taylor has not made the required showing and the Court declines to issue a Certificate of Appealability. His Motion to Vacate will be dismissed without prejudice for lack of jurisdiction. A separate Order shall be entered reflecting the opinion set out herein.