United States District Court, D. Maryland
William M. Nickerson, Senior United States District Judge
Donte Rolando Harris was sentenced on January 12, 2004. On
January 18, 2005, Defendant filed his first motion under 28
U.S.C. § 2255. ECF No. 135. After being supplemented,
that motion was denied on March 8, 2006. ECF Nos. 156, 157.
Defendant filed a second motion under § 2255 on November
22, 2006, ECF No. 172, which was denied on December 6, 2006.
ECF Nos. 173, 174.
before the Court is a motion filed by Defendant on June 16,
2016, which purports to be seeking relief under Rule 60(b) of
the Federal Rules of Civil Procedure. ECF No. 239. This
motion contains three "Claims:" "Improper
Sentencing Guidelines and Pre-Sentence Report
Calculation;" Relevant Conduct and Loss Amount;"
and "Ineffective Assistance of Counsel." Defendant
acknowledges in his motion that a "district court can
construe a Rule 60(b) motion into a Section 2255 [motion,
]" ECF No. 239 at 3, and Defendant directs the Court,
correctly, to United States v. Winestock, 340 F.3d
200 (4th Cir. 2003), for guidance as to " 'how to
distinguish a proper Rule 60(b) motion from a second or
successive [application] ¶ 60(b)'s
clothing.'" Id. at 4 (quoting Winestock,
340 F.3d at 207).
Winestock, the Fourth Circuit noted that, while
"[t]here may be no infallible test for making this
distinction,  a relatively straightforward guide is that a
motion directly attacking the prisoner's conviction or
sentence will usually amount to a successive application,
while a motion seeking a remedy for some defect in the
collateral review process will generally be deemed a proper
motion to reconsider. Id. The court explained
further that "a brand-new, free-standing allegation of
constitutional error in the underlying criminal judgment will
virtually always implicate the rules governing successive
applications. Similarly, new legal arguments or proffers of
additional evidence will usually signify that the prisoner is
not seeking relief available under Rule 60(b) but is instead
continuing his collateral attack on his conviction or
sentence." Id. (citations omitted).
current motion is clearly a successive petition. Defendant
seems to argue that it can be treated otherwise based upon
his representation that his previous filing "never
touched on the topic herein filed." ECF No. 239 at 4. A
motion simply bringing a new legal argument attacking the
defendant's conviction or sentence is, by definition, a
28 U.S.C. § 2244, a petitioner may file a second or
successive habeas corpus petition only if he has first
obtained an order from the appropriate circuit court
authorizing the district court to consider his application.
See 28 U.S.C. § 2244(b)(3). Despite
Defendant's argument to the contrary, the pending motion
is successive and this Court may not consider it until the
Court of Appeals for the Fourth Circuit enters an order
authorizing the district court to do so. See id.;
see also In re Vial, 115 F.3d 1192, 1197-98 (4th
Cir. 1997). Because it does not appear that Defendant has
obtained' such authorization,  the instant Motion will be
dismissed without prejudice pursuant to 28 U.S.C. §
United States Court of Appeals for the Fourth Circuit has set
forth instructions for the filing of a motion to obtain the
aforementioned authorization order. The procedural
requirements and deadlines for filing the motion are
extensive. The Clerk shall provide a packet of instructions
published by the Fourth Circuit which addresses the
comprehensive procedure to be followed should Petitioner wish
to seek authorization to file a successive § 2255 motion
with the appellate court. It is to be emphasized that
Petitioner must file the motion with the Fourth Circuit and
obtain authorization to file his successive petition before
this court may examine his claims.
addition to the above analysis, the issuance of a certificate
of appealability (COA) must be considered. When a district
court dismisses a habeas petition solely on procedural
grounds, a COA will not issue unless the petitioner can
demonstrate both "(1) 'that jurists of reason would
find it j debatable whether the petition states a valid claim
of the denial of a constitutional right' and (2)
'that jurists of reason would find it debatable whether
the district court was correct in its procedural
ruling.'" Rouse v. Lee, 252 F.3d 676, 684
(4th Cir. 2001) (quoting Slack v. Daniel, 529 U.S.
473, 484 (2000)) . The denial of a COA does not preclude a
petitioner from seeking permission to file a successive
petition or from pursuing his claims upon receiving such
permission. Because Petitioner has not made a substantial
showing of the denial of his constitutional rights, this
Court will not issue a COA.
the Court will dismiss Defendant's pending motion without
prejudice and will not issue a certificate of appealability.
A separate order will issue.
 While he was being represented by the
Office of the Federal Public Defender, Defendant did file in
the Fourth Circuit a motion for authorization to file a
successive petition relying on a different argument, one
arising out of the Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2551 (2015). The