United States District Court, D. Maryland
J. MESSITTE UNITED STATES DISTRICT JUDGE
se petitioner Lorenzo Anthony Wilson has filed a Motion
to Correct Sentence Resulting from Plain Error pursuant to
Federal Rule of Criminal Procedure Rule 52(b). ECF No. 543.
The Court has considered the Motion and the Government's
Opposition. For the reasons set forth below, the Motion is
FACTUAL AND PROCEDURAL BACKGROUND
October 8, 2003, a federal grand jury indicted Wilson and two
others on five counts: one for kidnapping, aiding and
abetting the same; one for conspiracy to kidnap, aiding and
abetting the same; and three counts of using a firearm in
furtherance of a crime of violence, aiding and abetting the
same. After Wilson's case was severed from his
co-defendants' case, a petit jury found Wilson guilty of
conspiracy to kidnap and acquitted him of the other counts.
The Court subsequently sentenced him to life imprisonment,
followed by five years of supervised release.
his unsuccessful appeal to the Fourth Circuit, Wilson filed
his first motion to vacate pursuant to 28 U.S.C. § 2255
on April 13, 2012 (ECF No. 402), which he supplemented with
two additional motions. ECF Nos. 438, 483.The Court denied
his motion and the issues raised in his supplemental briefs.
ECF No. 494.
then filed the instant Motion, asking the Court to correct
his sentence pursuant to Rule 52(b). ECF No. 543.
Specifically, he argues the probation officer miscalculated
his sentencing guidelines, constituting “plain
error” under the Rule. Id. The Government has
filed an opposition to which Wilson has replied.
Rule of Criminal Procedure 52(b), on which Wilson's
Motion is premised, provides that “[a] plain error that
affects substantial rights may be considered even though it
was not brought to the court's attention.” Fed. R.
Crim. P. 52(b). However, the Supreme Court has held that the
Rule was “intended for use on direct appeal, ”
such that the “plain error” standard “is
out of place when a prisoner launches a collateral attack
against a criminal conviction.” United States v.
Frady, 456 U.S. 152, 164 (1982) (reaffirming “the
well-settled principle that to obtain collateral relief a
prisoner must clear a significantly higher hurdle than would
exist on direct appeal.”). Here, Wilson is collaterally
attacking the validity of his conviction and sentence. As
such, the proper vehicle by which to assert this challenge
would be a 28 U.S.C. § 2255 motion, not Rule
52(b). At most, the Petition would have to be
construed as a Motion to Vacate, Set Aside or Correct
Sentence under § 2255. But that does not salvage his
28 U.S.C. § 2255(h), a second or successive motion must
be certified by a panel of the appropriate court of appeals
to contain: “(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.” 28
U.S.C. § 2255(h).
has not received the proper certification from the Fourth
Circuit Court of Appeals to file a successive habeas
petition. Consequently, the Court may not consider the merits
of the claim.
CERTIFICATE OF APPEALABILITY
11(a) of the Rules Governing § 2255 cases provides that
the district court “must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” A certificate of appealability will not
issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). A
petitioner satisfies this standard by demonstrating that
reasonable jurists would find that any assessment of the
constitutional claims by the district court is debatable or
wrong, and that any dispositive procedural ruling by the
district court is likewise debatable. See Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003); Slack v.
McDaniel, 529 U.S. 473, 484 (2000). The Court has
considered the record and finds that Wilson has not made the
requisite showing here.
foregoing reasons, Wilson's Motion to Correct Sentence
(ECF No. 543) is DISMISSED. A ...