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Gill v. United States

United States District Court, D. Maryland

January 16, 2015

RAYMOND EDWARD GILL
v.
UNITED STATES OF AMERICA Criminal No. RDB-01-0478

MEMORANDUM OPINION

RICHARD D. BENNETT, District Judge.

This matter is before the Court on a self-represented 28 U.S.C. § 2241 Petition filed by Raymond Edward Gill. Mindful that Gill is proceeding pro se, his Petition has been generously construed to challenge the sentence imposed in United States v. Gill, Criminal No. RDB-01-0478(D. Md. 2002). Gill seemingly alleges that a federal conviction handed down in United States v. Gill, Criminal Nos. B-86-0009 & 0011 (D.Md. 1986, was illegally used to raise his offense level in the sentence imposed in United States v. Gill, Criminal No. RDB-01-0478 (D.Md. 2002).[1] ECF No. 1 at pp. 2-3. The Petition will construed as a 28 U.S.C. § 2255 Motion to Vacate and dismissed without prejudice.

This Motion directly attacks Gill's 2002 sentence, and is more appropriately construed as a 28 U.S.C. § 2255 Motion to Correct, Set Aside or Vacate. See Calderon v. Thompson, 523 U.S. 538, 554 (1998) (ruling it is the subject matter of the motion and not a petitioner's description which determines its status). As such, this motion represents Gill's fifth attempt to collaterally attack his conviction and/or sentence. See Gill v. United States, Civil Action Nos. JFM-01-0478 (D. Md. 2002); JFM-04-2321 (D.Md. 2004), JFM-06-150 (D. Md. 2006), and JFM-07-2425 (D. Md. 2007). Successive motions under § 2255 may not be filed absent leave to do so from the Court of Appeals. See 28 U.S.C. §§ 2244(b)(3)(A) & 2255; In re Avery W. Vial, 115 F.3d 1192, 1197-98 (4th Cir. 1997). Since Gill has not obtained this authorization from the United States Court of Appeals for the Fourth Circuit, [2] the Motion must be dismissed for lack of jurisdiction. See Evans v. Smith, 220 F.3d 306, 325 (4th Cir. 2000).

Gill has no absolute entitlement to appeal the denial of his § 2255 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). Gill "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). The Court declines to issue a certificate of appealability because Gill has not made the requisite showing. A separate Order follows.


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