Elawyers Elawyers
Ohio| Change

U.S. v. Barnes, 3:10-cr-00032-1. (2018)

Court: District Court, W.D. Virginia Number: infdco20180801g09 Visitors: 10
Filed: Jul. 07, 2018
Latest Update: Jul. 07, 2018
Summary: MEMORANDUM OPINION NORMAN K. MOON , Senior District Judge . This Court previously denied Petitioner's original motion to vacate, set aside, or correct his sentence under 28 U.S.C. 2255. (Dkt. 431). Petitioner filed a motion for reconsideration (dkt. 438), which was denied. (Dkt. 447). This Court's denial of Petitioner's Section 2255 motion was affirmed on appeal. (Dkt. 455). Petitioner then filed another motion for reconsideration of this Court's ruling, after it had been affirmed on appe
More

MEMORANDUM OPINION

This Court previously denied Petitioner's original motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. (Dkt. 431). Petitioner filed a motion for reconsideration (dkt. 438), which was denied. (Dkt. 447). This Court's denial of Petitioner's Section 2255 motion was affirmed on appeal. (Dkt. 455). Petitioner then filed another motion for reconsideration of this Court's ruling, after it had been affirmed on appeal. (Dkt. 461). The Court denied Petitioner's motion because this Court had no jurisdiction to reconsider the original Section 2255 motion and because Petitioner had not made the requisite showing to warrant a certificate of appealability. (Dkt. 509).

Petitioner then filed yet another motion to reconsider, raising the same argument. (Dkt. 511). However, "a Rule 60(b) motion in a habeas proceeding that attacks the substance of the federal court's resolution of a claim on the merits is not a true Rule 60(b) motion, but rather a successive habeas petition." United States v. McRae, 793 F.3d 392, 397 (4th Cir. 2015) (citation omitted). This Court has already "considered, and dismissed, [Petitioner's] claim that counsel's advocacy was deficient with regard to the drug weight calculation," and so this is a successive habeas petition. (Dkt. 509). But "[a] successive habeas petition may not be filed in district court without preauthorization from a court of appeals under § 2244(b)(3)(A)." McRae, 793 F.3d at 397. Petitioner's motion for reconsideration (dkt. 511), will be dismissed without prejudice as successive. Because Petitioner still has not made the requisite substantial showing of denial of a constitutional right as required by 28 U.S.C. § 2253(c), a certificate of appealability will be denied.

The Clerk of the Court is directed to send a certified copy of this memorandum opinion and the accompanying order to the parties and strike this action from the active docket of this Court.

Source:  Leagle

Can't find what you're looking for?

Post a free question on our public forum.
Ask a Question
Search for lawyers by practice areas.
Find a Lawyer