United States District Court, D. Maryland
Richard D. Bennett United States District Judge
pro se Petitioner Mario Simuel ("Petitioner"
or "Simuel") pled guilty before Judge Benson
of this Court to one count of armed bank robbery, in
violation of 18 U.S.C. § 2113(a), (d) and (£),
. At sentencing, Judge Legg found that Simuel was a
"career offender" under Section 4B1.1 of the United
States Sentencing Guidelines, on the basis of a prior
"crime of violence" (bank robbery) and a prior
felony "controlled substance offense." See
Mot., p. 4, ECF No. 290. Judge Legg sentenced Simuel to 235
months imprisonment, followed by three years on supervised
release. On appeal, the United States Court of Appeals for
the Fourth Circuit affirmed the Judgment of this Court.
See United States v. Simuel, 180 F.App'x 431,
432 (4th Ck. 2006).
Simuel filed his first pro se Motion to Vacate, Set
Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255
(ECF No. 223). Via Memorandum Opinion and Order dated March
31, 2009 (ECF Nos. 253 & 254), Judge Legg denied that
Motion. Simuel did not appeal Judge Legg's Order, but has
now filed a second se Motion to Vacate, Set Aside,
or Correct Sentence pursuant to 28 U.S.C. § 2255 (ECF
No. 290), arguing that neither his offense of conviction nor
his predicate bank robbery conviction constitutes a
"crime of violence" under Section 4B1.2 of the
United States Sentencing Guidelines in light of the United
States Supreme Court's intervening decision in
Johnson v. United States, 135 S.Ct. 2551 (2015).
Also pending before this Court is Simuel's Motion to Stay
Proceedings (ECF No. 291), pending the ruling of the United
States Court of Appeals for the Fourth Circuit on his motion
for authorization to file this successive Section 2255
Antiterrorism and Effective Death Penalty Act of 1996
provides that a second or successive Section 2255 petition
must be 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);
Felkerv. 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. Winestock, 340 F.3d 200, 205 (4th Cir. 2003).
Order dated July 29, 2016 (ECF No. 292), the United States
Court of Appeals for the Fourth Circuit has now denied
Simuel's motion for authorization. The Fourth Circuit
held that "Simuel [had] fail[ed] to make the prima facie
showing necessary to receive the requested authorization . .
. [because] Johnson [did] not call into question
[his] status as a career offender . . . [and] [his] offense
level for his offenses of conviction exceeded the career
offender offense level set forth under U.S. Sentencing
Guidelines Manual § 4B1.1
(2012)." 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 to Vacate.
these reasons, Petitioner Simuel's Motion to Stay
Proceedings (ECF No. 291) is now MOOT, and his second pro
se Motion to Vacate, Set Aside, or Correct Sentence
pursuant to 28 U.S.C. § 2255 (ECF No. 290) 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. Hadden, 475 F.3d 652, 659
(4th Cir. 2007). The United States Court of Appeals for the
Fourth Circuit has held in Jones p. 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. McDaniel, 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 prisoner
shows, at least, that. . . jurists of reason would find it
debatable whether the district court was correct in its
procedural ruling." Because reasonable jurists would not
find debatable whether this Court's ruling was correct, a
Certificate of Appealability is DENIED.
separate Order follows.
 This case was initially assigned to
Judge Benson E. Legg of this Court, but has subsequently been
reassigned to the undersigned Judge Richard D. Bennett.
See Docket Entry, 06/29/2016.
 The Supreme Court of the United States
has since held in Beckles v. United States, 137
S.Ct. 886, 897 (2017), that the Johnson decision
does not apply to the career offender provisions of the