United States District Court, D. Maryland
Richard D. Bennett United States District Judge.
pro se Petitioner Calvin Darnell Parnell
("Petitioner" or "Parnell") pled guilty
before this Court to one count of possession of a firearm by
a convicted felon, in violation of 18 U.S.C. § 922(g).
See J., p. I, ECF No. 26. At sentencing, this Court
found that Parnell was an "armed career criminal"
under the Armed Career Criminal Act ("A CCA"), 18
U.S.C. § 924(e), on the basis of six prior "serious
drug offenses." Accordingly, this Court sentenced
Parnell to 188 months imprisonment, followed by five years on
supervised release. Id. at 2-3. On appeal, the
United States Court of Appeals for the Fourth Circuit
dismissed in part Parnell's appeal and otherwise affirmed
the Judgment of this Court. See United States v.
Parnell, 261 F.App'x 601, 603 (4th Cir. 2008).
Parnell filed his first pro se Motion to Vacate, Set
Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255
(ECF No. 38) in this Court. Via Memorandum Opinion and Order
dated February 7, 2011 (ECF Nos. 51 & 52), this Court
denied that Motion. See Parnell v. United States,
No. RDB-09-934, 2011 WL 484200, at *5 (D. Md. Feb. 7, 2011).
The Fourth Circuit denied Parnell a Certificate of
Appealability and dismissed his appeal. See United States
v. Parnell, 463 F.App'x 184, 185 (4th Or. 2012).
Parnell has now filed a second prs se Modon to
Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C.
§ 2255 (ECF No. 66), arguing that his prior drug
convictions no longer qualify as predicate offenses under the
Armed Career Criminal Act in light of the United States
Supreme Court's intervening decision in Johnson v.
United States, 135 S.Ct. 2551 (2015).
Antiterrorism and Effective Death Penalty Act of 1996
provides that a second or successive Section 2255 petition
must he certified by a panel of the appropriate court of
appeals to contain either "newly discovered evidence ...
or a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable." 28 U.S.C. §
2255(h)(1)-(2); see also § 2244(b)(3)(A);
Felker v. Turpin, 518 U.S. 651, 664 (1996). Absent
pre-filing authorization, this Court lacks jurisdiction to
consider a second or successive petition. United States
v. Winestack, 340 F.3d 200, 205 (4th Cir. 2003).
Order dated July 28, 2016 (ECF No. 67), the United States
Court of Appeals for the Fourth Circuit has denied
Parnell's motion for authorization to file a successive
petition. The Fourth Circuit held that Parnell had
"fail[ed] to make the prima facie showing necessary to
receive the requested authorization .... [t]he predicate
status of [his] prior drug offenses was unaffected by
Johnson.'"). The Johnson case does
not apply to "serious drug offense" predicate
convictions, but only addressed the definition of
"violent felony" under the "residual
clause" of the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii).
The Fourth Circuit's decision is not reviewable.
See 28 U.S.C. § 2244(b)(3)(E) ("The grant
or denial of an authorization by a court of appeals to file a
second or successive application shall not be appealable . .
. ."). Accordingly, this Court lacks jurisdiction to
consider the pending Motion.
these reasons, Petitioner Parnel Fs second pro se
Morion to Vacate, Set Aside, or Correct Sentence pursuant to
28 U.S.C. § 2255 (ECF No. 66) is DISMISSED.
to 28 U.S.C. § 2253 and Rule 11(a) of the Rules
Governing Proceedings under 28 U.S.C. § 2255, a court is
required to issue or deny a Certificate of Appealability when
it enters a final order adverse to the applicant. A
Certificate of Appealability is a "jurisdictional
prerequisite" to an appeal from the court's earlier
order. United States v. Hodden,475 F.3d 652, 659
(4th Cir. 2007). The United States Court of Appeals for the
Fourth Circuit has held in Jones v. Braxton, 392
F.3d 683, 688 (4th Cir. 2004) that "an order dismissing
a habeas petition without prejudice on the grounds that it is
an unauthorized successive petition constitutes 'the
final order in a habeas proceeding' within the meaning of
28 U.S.C. § 2253(c)(1)(A), and thus that the certificate
of appealability requirement of that section applies to any
appeal from such an order." The United States Supreme
Court has held in Slack v. McDaniei,529 U.S. 473,
484 (2000) that "[w]hen the district court denies a
habeas petition on procedural grounds without reaching the
prisoner's underlying constitutional claim, a
[Certificate of Appealability] should issue when the ...