United States District Court, D. Maryland
FREDERICK MOTZ, District Judge.
nine-day jury trial Robert Donnell Parks was convicted of
murder in furtherance of a racketeering activity, conspiracy
to murder as part of a racketeering activity, and conspiracy
to distribute heroin, in violation of 18 U.S.C. Â§Â§
1959(a)(1), (a)(5) and 21 U.S.C. Â§ 846. Criminal judgment was
entered on the docket on August 1, 1996. See United
States v. Parks, Criminal No. JFM-95-347 (D. Md.). The
criminal judgment was affirmed on appeal on October 28, 1997.
Id. at Paper No. 73; see also United States v.
Parks, 129 F.3d 118 (4th Cir. 1997). Parks' petition
for writ of certiorari was denied by the Supreme Court on
February 23, 1998. See Parks v. United States, 522
U.S. 1142 (1998).
October 30, 2001, Parks' first 28 U.S.C. Â§ 2255 motion
was denied and dismissed with prejudice as time-barred.
See United States v. Parks, Criminal No. JFM-95-347
(D. Md.) at Paper 77 & 78. In addition, his motion to reopen
the dismissal of his motion to vacate was denied on March 24,
2010. Id. at ECF No. 84 & 85.
9, 2016, Parks filed his most recent self-represented Â§ 2255
motion. Id. at ECF No. 86. Generously
construing the document, Parks claims that his prior
convictions cannot stand in light of the Supreme Court
decision in Johnson v. United States, 135 S.Ct. 2551
(2015), made retroactive to prior criminal cases by Welch
v. United States, 136 S.Ct. 1257 (2016). He maintains
that his sentence was enhanced under Sentencing Guideline Â§
4B 1.1 as a "career offender" and he should be
resentenced under Johnson. See United States v.
Parks, Criminal No. JFM-95-347 (D. Md.) at ECF No. 86.
circuits have determined that dismissal of a motion as
time-barred is a decision on the merits for the purpose of
deciding whether subsequent petitions are second or
successive. See e.g. Murray v. Greiner, 394
F.3d 78, 81 (2d Cir. 2005); Altman v. Benik, 337
F.3d 764 (7th Cir. 2003) ( per curiam ); McNabb
v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009); In re
Rain, 659 F.3d 1274, 1275 (10th Cir. 2011).
as the recent motion raises an attack on Parks'
sentences, the challenge amounts to a successive motion to
vacate sentence filed pursuant to 28 U.S.C. Â§ 2255.
See Swain v. Pressley, 430 U.S. 377-78
(1977); In re Jones, 226 F.3d 328, 332 (4th Cir.
2000). A "second or successive" petition for relief
under Â§ 2255 may not be filed in a district court unless the
petitioner first obtains the "gatekeeping"
authorization of the court of appeals certifying that the
petition conforms to specified statutory requirements.
See 28 U.S.C. Â§Â§ 2255, 2244(b)(3)(A). The Fourth
Circuit must first enter an order authorizing this court to
consider the successive filing before this court can examine
the merit of his claims. See Â§ 2244(b)(3)(A);
Felker v. Turpin, 518 U.S. 651, 664 (1996).
Fourth Circuit has denied Parks authorization to file a
second or successive Â§ 2255 motion. See United States v.
Parks, Criminal No. JFM-95-347 (D. Md.) at ECF No. 88.
Upon review of the record, it concluded that Parks'
sentence was not based on the career offender sentencing
guideline, but was instead based on a cross-reference to the
base offense level for first-degree murder. See
United States v. Parks, Criminal No. JFM-95-347 (D. Md.)
at ECF No. 88. For this reason, the motion shall be denied
has no absolute entitlement to appeal the denial of his Â§
2255 motion. See 28 U.S.C. S 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 Â§ 2253(c)(2). Parks
"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 Parks has not made the
requisite showing. A separate Order follows.
 With Judge Benson E. Legg's
retirement, the case was reassigned on May 10, 2016.
 The government filed a motion to dismiss
arguing that Parks' motion should be denied as he did not
obtain Fourth Circuit authorization to file a successive
motion and he is not eligible for relief under
Johnson as he was not sentenced as a career
offender. See United ...