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United States v. Josand Farmer, 16-6813 (2016)

Court: Court of Appeals for the Fourth Circuit Number: 16-6813 Visitors: 16
Filed: Oct. 19, 2016
Latest Update: Mar. 03, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-6813 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSAND FARMER, a/k/a Johan Farmer, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:10-cr-00271-FL-3) Submitted: October 7, 2016 Decided: October 19, 2016 Before KING, DIAZ, and FLOYD, Circuit Judges. Dismissed by unpublished per curiam opinion. Josand Farm
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                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 16-6813


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOSAND FARMER, a/k/a Johan Farmer,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Louise W. Flanagan,
District Judge. (5:10-cr-00271-FL-3)


Submitted:   October 7, 2016                 Decided:   October 19, 2016


Before KING, DIAZ, and FLOYD, Circuit Judges.


Dismissed by unpublished per curiam opinion.


Josand Farmer, Appellant Pro Se.      Jennifer P. May-Parker,
Assistant United States Attorney, Seth Morgan Wood, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Josand Farmer seeks to appeal from the district court’s

order denying his motion to correct error in the presentence

report and judgment.           We conclude that Farmer’s motion was in

substance a successive 28 U.S.C. § 2255 (2012) motion.

     The    district       court’s    order    is   not     appealable        unless   a

circuit justice or judge issues a certificate of appealability.

28   U.S.C.     § 2253(c)(1)(B)          (2012).             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)

(2012).    When the district 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).                 When the district 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
.

     We have independently reviewed the record and conclude that

Farmer has not made the requisite showing.                       The district court

lacked jurisdiction to deny § 2255 relief on the merits because

Farmer’s    motion     to    correct    challenged         the     validity    of    his

                                         2
sentence and should have been construed as a successive § 2255

motion.   See Gonzalez v. Crosby, 
545 U.S. 524
, 531–32 (2005);

United States v. Winestock, 
340 F.3d 200
, 207 (4th Cir. 2003).

In the absence of pre-filing authorization from this court, the

district court lacked jurisdiction to hear a successive § 2255

motion.   See 28 U.S.C. § 2244(b)(3) (2012).

     Accordingly, we deny a certificate of appealability, deny

Farmer’s motion to compel, and dismiss the appeal.              We dispense

with oral argument because the facts and legal contentions are

adequately   presented   in   the   materials   before   this    court   and

argument would not aid the decisional process.

                                                                  DISMISSED




                                     3

Source:  CourtListener

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