US v. Josand Farmer

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to compel [999905197-2]. Originating case number: 5:10-cr-00271-FL-3. Copies to all parties and the district court. [999950357]. Mailed to: Appellant. [16-6813]

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UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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.”
(2012).

28 U.S.C. § 2253(c)(2)

When the district court denies relief on the merits, a

prisoner

satisfies

this

jurists

would

reasonable

standard
find

by

that

demonstrating

the

district

that

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).
denies

relief

demonstrate

both

on

procedural

that

the

When the district court

grounds,

dispositive

the

prisoner

procedural

ruling

must
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
2

the

validity

of

his

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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