United States District Court, D. Maryland
J. MESSITTE, District Judge.
Castillo Ramos, pro se, has filed a "Petition
to Review Sentence under 18 U.S.C. § 3742(a)(1), "
seeking to set aside his convictions. ECF No. 90. The
Government opposes the Petition, arguing that it is a
successive 18 U.S.C. § 2255 motion to vacate as to which the
Court lacks jurisdiction. ECF No. 96. For the reasons that
follow, the Court agrees with the Government and will DISMISS
WITH PREJUDICE Ramos' Motion to Review Sentence under 18
U.S.C. § 3742(a)(1), construed as a Motion to Vacate Sentence
under 18 U.S.C. § 2255.
* * *
September 8, 2004, Ramos was indicted on six counts of
distributing cocaine base (crack) and two counts of using and
carrying a firearm during and in relation to a drug
trafficking offense. ECF No. 5. After a jury trial in 2004,
he was convicted of all eight counts. On February 2, 2005,
Judge Williams of this Court (now retired) sentenced Ramos to
40 years imprisonment. ECF No. 27. On appeal, the Fourth
Circuit affirmed the conviction and sentence. ECF No. 31. On
November 27, 2006, the Supreme Court denied Ramos'
petition for writ of certiorari.
November 5, 2007, Ramos filed a timely Motion to Vacate, Set
Aside and Correct Sentence under 18 U.S.C. § 2255, asserting
several ineffective assistance of counsel claims and arguing
that his sentence was in excess of the sentence allowed by
law. ECF No. 34. In a Memorandum Opinion and Order on
December 2, 2008, the Court (J. Williams) denied the Motion
to Vacate. ECF Nos. 42 and 43. Ramos appealed. On July 29,
2009, the Fourth Circuit dismissed Ramos' appeal. ECF No.
7, 2014, Ramos filed a Motion styled as a "Petition for
Relief Under the All Writs Act, Title 28 U.S.C. § 1651(A),
" seeking to set aside his convictions. ECF No. 79. In a
Memorandum Opinion and Order dated May 8, 2014, this member
of the Court construed the May 7 Petition as a successive
motion to vacate sentence under 28 U.S.C. § 2255. ECF No. 80,
at 3. The Court also noted that Ramos had provided no
evidence that he had received authorization to file a
successive Motion to Vacate by the Fourth Circuit as required
pursuant to 28 U.S.C. § 2244(b)(3)(A). The Court provided
Ramos a packet of instructions promulgated by the Fourth
Circuit which addressed the procedures to be followed should
Ramos wish to seek authorization to file a successive
petition. ECF No. 80, at 3, 3 n.3. The Court then dismissed
the Motion without prejudice. ECF No. 81. The Court also
declined to issue a certificate of appealability. ECF No. 81.
the Court's May 8, 2014 Memorandum Opinion and Order,
Ramos sought authorization in the Fourth Circuit for the
district court to consider a second or successive application
for relief. See ECF No. 83-7. The Fourth Circuit,
however, denied Ramos' petition. Id. On
September 27, 2014, Ramos filed another "Petition for
Relief Under the All Writs Act, Title 28 U.S.C. §
1651(A)" - which mirrored his May 7, 2014 Petition -
seeking to set aside his convictions. ECF No. 83. In a
Memorandum Opinion and Order dated February 25, 2015, the
Court again construed Ramos' Petition as a successive
motion to vacate sentence under 28 U.S.C. § 2255. ECF No. 85,
at 2. The Court concluded that, in the absence of pre-filing
authorization, it lacked jurisdiction to consider the
successive motion to vacate. Id. The Court therefore
dismissed with prejudice Ramos' successive motion to
vacate and declined to issue a certificate of appealability.
ECF Nos. 85 and 86.
instant "Petition to Review Sentence under 18 U.S.C. §
3742(a)(1), " Ramos yet again requests that the Court
set aside his conviction. In essence, he makes a constructive
amendment claim, arguing that, in delivering the jury
instructions, the Court impermissibly modified the language
of the indictment with respect to the firearm counts. While
it does not appear that Ramos has raised this particular
theory before, his Petition is nevertheless a direct
challenge to his underlying conviction. As such, the Court
will construe it as a successive Motion to Vacate under 18
U.S.C. § 2255. See U.S. v. Winestock, 340
F.3d 200, 207 (4th Cir. 2003) ("[A] brand-new,
free-standing allegation of constitutional error in the
underlying criminal judgment will virtually always implicate
the rules governing successive applications").
the fact that the Court has informed Ramos that it lacks
jurisdiction to consider another 28 U.S.C. § 2255 motion to
vacate unless he first obtains authorization from the Fourth
Circuit Court of Appeals, Ramos has failed to show proof of
such authorization. Accordingly, in the absence of pre-filing
authorization, this Court lacks jurisdiction to consider
Ramos' successive Motion to Vacate Sentence. See
Winestock, 340 F.3d at 205. The Court therefore
dismisses Ramos' successive Motion to Vacate Sentence
with prejudice and declines to issue a certificate of
separate Order will ISSUE.
 Ramos has also filed a "Petition to
Amend" his "Petition to Review Sentence under 18
U.S.C. § 3742(a)(1)" (ECF No. 98). In view of the
Court's lack of jurisdiction in the case, the Petition ...