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BEAN v. U.S., 5:07-CR-00297-F-1 (2015)

Court: District Court, E.D. North Carolina Number: infdco20151224951
Filed: Dec. 23, 2015
Latest Update: Dec. 23, 2015
Summary: ORDER JAMES C. FOX , Senior District Judge . This matter is before the court on the Government's Motion to Dismiss [DE-133] Willie James Bean's pending Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. 2255 [DE-125]. The issues have been fully briefed and are now ripe for ruling. For the reasons more fully stated below, the Government's Motion to Dismiss is ALLOWED, and Bean's Motion to Vacate is DISMISSED. I. Discussion A review of the record reveals that Bean prev
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ORDER

This matter is before the court on the Government's Motion to Dismiss [DE-133] Willie James Bean's pending Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 [DE-125]. The issues have been fully briefed and are now ripe for ruling. For the reasons more fully stated below, the Government's Motion to Dismiss is ALLOWED, and Bean's Motion to Vacate is DISMISSED.

I. Discussion

A review of the record reveals that Bean previously filed a§ 2255 motion that was resolved on the merits. See August 23, 2012 Order [DE-90]. Pursuant to 28 U.S.C. § 2244(b)(3)(A), "[b]efore a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." In this case, Bean must first obtain an order from the Fourth Circuit Court of Appeals before this court will consider any successive petition under 28 U.S.C. § 2255.

II. Conclusion

For the foregoing reasons, the Government's Motion to Dismiss [DE-133] is ALLOWED, and Bean's pending Motion to Vacate [DE-125] is DISMISSED without prejudice to him to seek pre-filing authorization from the Fourth Circuit Court of Appeals.

A certificate of appealability will not issue unless there has been "a substantial showing ofthe denial of a constitutional right." 28 U.S.C. § 2253(c)(2). When the court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court's assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). However, when a court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the motion states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85.

The court concludes that Bean has not made the requisite showing to support a certificate of appealability. Therefore, a certificate of appealability is DENIED.

SO ORDERED.

Source:  Leagle

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