United States District Court, D. Maryland
J. MESSITTE UNITED STATES DISTRICT JUDGE.
above-captioned Motion to Vacate was filed on October 4,
2017. ECF 114. On April 19, 2006, Brown pled guilty to a
single count of possession of child pornography in violation
of 18 U.S.C. § 2252A(a)(5)(B). At sentencing, he sought
to withdraw his guilty plea. The Court denied his request and
sentenced him to 48 months imprisonment followed by two years
of supervised release. The Fourth Circuit affirmed the
judgment and sentence on appeal. United States v.
Brown, 261 Fed. App'x. 494 (4th Cir. 2008). Brown
subsequently filed a 28 U.S.C. § 2255 Motion to Vacate
his sentence, which the Court also denied. ECF Nos. 29, 35.
Brown's appeal of the denial of this motion was dismissed
by the Fourth Circuit, and his petition for writ of
certiorari to the Supreme Court denied.
on supervised release following his incarceration, the Court
found Brown in violation of the term of his supervised
release that prohibited him from having unsupervised contact
with minor children without the permission of the Probation
Officer. As a result, the Court revoked his supervised
release and sentenced him to 24 months of incarceration,
followed by 10 years of supervised release. Brown appealed,
challenging, among other things, the Court's authority to
impose a 10 year term of supervised release. On appeal, the
Government agreed with Brown's arguments and, based on a
joint motion by the parties, the Fourth Circuit remanded the
case to this Court for re-sentencing. On remand, the Court
re-sentenced Brown to 24 months of imprisonment with no
supervised release term to follow.
November 15, 2012, while his appeal of the sentence imposed
for the supervised release violation was still pending,
Brown, pro se, filed a second § 2255 motion,
despite being represented by counsel. ECF No. 78. The Court
dismissed the second motion on February 12, 2014, for lack of
jurisdiction because Brown had not received the required
certification from the Fourth Circuit to file a successive
habeas petition. ECF No. 105.
September 30, 2014, Brown filed a “Rule 60(b)”
Motion. ECF No. 108. He argued that Federal Rule of Civil
Procedure 60(b) provided him a remedy because he had
discovered “new evidence” that showed his counsel
was ineffective in advising him regarding his plea. The Court
denied the Motion finding that he was not entitled to Rule
60(b) relief and that the Motion was the functional
equivalent of a successive §2255 petition. ECF No. 112.
current filing entitled “Motion for Relief from
Violation of Constitutional Rights and New Evidence of
Ineffective Assistance of Counsel, ” raises the same
claims previously litigated regarding Brown's guilty plea
and is undoubtedly a successive §2255 petition. ECF No.
Brown has previously been advised, under 28 U.S.C. Â§2255:
A second or successive motion must be certified as provided
in section 2244 by a panel of the appropriate court of
appeals to containB(1) newly discovered evidence that, if
proven and viewed in light of the evidence as a whole, would
be sufficient to establish by clear and convincing evidence
that no reasonable factfinder would have found the movant
guilty of the offense; or (2) a new rule of constitutional
law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable.
has not received the proper certification from the Fourth
Circuit Court of Appeals. Consequently, this Court may not
consider the merits of the claim.
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. Consequently, this Court has attached hereto a
packet of instructions promulgated by the Fourth Circuit
which addresses the comprehensive procedure to be followed
should Petitioner wish to seek authorization to file a
successive petition with the appellate court. It is to be
emphasized that Petitioner must file the pleading with the
Fourth Circuit Court of Appeals and obtain authorization to
file a successive petition before this Court may examine the
addition to the above analysis, a certificate of
appealability must be considered. Unless a certificate of
appealability (“COA”) is issued, a petitioner may
not appeal the Court's decision in a § 2255
proceeding. 28 U.S.C. § 2253(c)(1); Fed. R. App. P.
22(b). A COA may issue only if the petitioner “has made
a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). The petitioner
“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) (citation and internal
quotation marks omitted), or that “the issues presented
are adequate to deserve encouragement to proceed further,
” Miller-El v. Cockrell, 537 U.S. 322, 327
(2003). The denial of a COA does not preclude a petitioner