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Sibug v. Hershberger

United States District Court, Fourth Circuit

June 17, 2013

MARIO SIBUG, #353758 Plaintiff,
v.
GREGG HERSHBERGER, WARDEN of RCI, et al. Defendants.

MEMORANDUM

CATHERINE C. BLAKE, District Judge.

On June 5, 2013, Mario Sibug, a Maryland state prisoner, filed this pro se motion for federal habeas corpus relief pursuant to 28 U.S.C. § 2254 challenging his convictions in September 2008 in the Circuit Court for Baltimore County for first-degree assault, second-degree assault, and related weapons offenses. In October 2008, Sibug was sentenced to ten years' incarceration. For the reasons that follow, the instant motion will be dismissed without prejudice for lack of jurisdiction.

This motion represents petitioner's second § 2254 challenge to his 2008 convictions. His first motion for habeas relief under 28 U.S.C. § 2254 was dismissed as time-barred. See Sibug v. Sowers, et al. Civil Action No. CCB-11-2068 (D. Md. 2011). On May 1, 2012, the United States Court of Appeals for the Fourth Circuit dismissed his appeal of the decision and declined to issue a certificate of appealability. See S ibug v. Sowers, CA4 No. 12-6065.

A prisoner may file a second or successive habeas corpus petition only if he has moved the appropriate circuit court for an order authorizing the district court to consider his application, and the circuit court has issued such an order. See 28 U.S.C. § 2244(b)(3)(A). Sibug provides no evidence that he has obtained authorization to file a second or successive motion; consequently, the instant motion must be dismissed for lack of jurisdiction. See Evans v. Smith, 220 F.3d 306, 325 (4th Cir. 2000).

A certificate of appealability ("COA") must issue before a petitioner may appeal the court's decision in a 28 U.S.C. § 2254 case. Sibug has failed to make "a substantial showing of the denial of a constitutional right" and a COA will be denied. 28 U.S.C. § 2253(c)(2).[1] Denial of a COA does not prevent petitioner from seeking permission from the United States Court of Appeals for the Fourth Circuit to file a successive petition or pursuing his claims after obtaining such permission. An order consistent with this memorandum follows.


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