Gasque v. USA - 2255

Filing 2

MEMORANDUM. Signed by Judge James K. Bredar on 4/23/14. (c/m)(hmls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

JOSEPH GASQUE, #51100-037
Petitioner,
v.
UNITED STATES OF AMERICA
Respondent.

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Civil Action No. JKB-14-1266
Criminal Action No. JKB-10-195

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MEMORANDUM

On November 9, 2011, the court sentenced Joseph Gasque (“Gasque”) to a total of 119
months in the Bureau of Prisons on one count of conspiracy to distribute and to possess with intent
to distribute cocaine hydrochloride and cocaine base in violation of 21 U.S.C. § 846. Judgment was
entered on November 16, 2011. No appeal was filed.
Gasque filed his first motion to vacate on November 13, 2012. See United States v. Gasque,
Criminal No. JKB-10-195 (D. Md.) at ECF No. 68. Subsequent to briefing by the parties, the
motion was denied on the merits on March 27, 2013. Id. at ECF No. 75.
On April 14, 2014, the court received for filing Gasque’s second motion to vacate. See
United States v. Gasque, Criminal No. JKB-10-195 (D. Md.) at ECF No. 78.1 He raises claims
citing to the cases of Descamps v. United States, 133 S.Ct. 2276 (2013) and United States v. Royal,
731 F.3d 333 (4th Cir. 2013),2 which he argues revise the approach “to determine which prior

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Gasque also filed a motion for leave to proceed in forma pauperis and a motion for
appointment of counsel. See United States v. Gasque, Criminal No. JKB-10-195 (D. Md.) at ECF Nos. 79 &
80. As there is no civil filing fee associated with the filing of a § 2255 motion, the indigency application
shall be dismissed as moot. Further, given the dismissal of this collateral attack, the motion for appointment
of counsel shall be denied.
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See Descamps v. United States, ––– U.S. –––, 133 S.Ct. 2276 (June 20, 2013) (clarifying the
test for determining whether a prior conviction constitutes a violent felony under the “residual clause” of the
Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(2)(B)(ii). Federal sentencing courts may no longer
apply a “modified categorical approach” to determine whether prior offense was a violent felony when the
crime has a single, indivisible set of elements). The Supreme Court has not, however, declared Descamps

convictions are to be considered violent felonies for armed career and career offenders under 18
U.S.C. § 924(e) and § 4B1.1 of the United States Sentencing Guidelines (U.S.S.G.).”3 See United
States v. Gasque, Criminal No. JKB-10-195 (D. Md.) at ECF No. 78. He further asks this court to
alternatively construe his motion to vacate as a 28 U.S.C. § 2241 petition for habeas corpus relief if
it concludes that the § 2255 remedy is ineffective.4 Id.
This recent motion is undoubtedly a successive § 2255 challenge to Gasque’s conviction and
may not be considered without leave to do so from the Fourth Circuit. See 28 U.S.C. §§
2244(b)(3)(A) & 2255; In re Avery W. Vial, 115 F.3d 1192, 1194 (4th Cir. 1997) (en banc). Under
28 U.S.C. § 2255:
A second or successive motion must be certified as
provided in section 2244 by a panel of the appropriate
court of appeals to containB(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
fact finder 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.
There is no showing Gasque has filed for and received certification from the Fourth Circuit.

retroactive on collateral review.
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Gasque’s reliance on § 2255(f)(3) & (4) is misplaced. These provisions relate to the
timeliness of a § 2255 motion, and provide that the motion must be filed within one year of the date the
Supreme Court recognizes a new right, and after that right has been “made retroactively applicable to cases on
collateral review” or filed within one year of the date on which “facts supporting the claim or claims
presented could have been discovered through the exercise of due diligence.” Id. Although he did file his
motion within one year from the date that Supreme Court decided Descamps, that fact cannot serve to
authorize this court to consider the merits, if any, of Gasque’s § 2255 motion. In sum, timeliness is not the
issue which this court must address when deciding whether the present motion is permissible.
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Merely because a petitioner is precluded from obtaining review of a successive § 2255
motion in the district court in the absence of circuit court authorization does not render § 2255 an inadequate

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Consequently, this court may not consider the merits of his claim.
The United States Court of Appeals for the Fourth Circuit has set forth instructions for filing
a motion to obtain an authorization order. The procedural requirements and deadlines for filing the
motion are extensive. The Clerk will provide Gasque a packet of Fourth Circuit instructions which
addresses the comprehensive procedure to be followed should the petitioner seek authorization to
file a successive petition. It is emphasized that Gasque must file his pleading with the Fourth Circuit
Court of Appeals and obtain authorization to file his successive petition before this court may
examine his claims.
Gasque has no absolute entitlement to appeal the denial of his § 2255 motion. See 28 U.S.C.
§ 2253(c)(1). A certificate of appealability may issue only if the applicant has made a substantial
showing of the denial of a constitutional right. Id. at § 2253(c)(2). Gasque “must demonstrate that
reasonable jurists would find the district court's assessment of the constitutional claims debatable or
wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473,
484 (2000)), or that “the issues presented were ‘adequate to deserve encouragement to proceed
further,’ ” Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S.
880, 893 n.4 (1983)). The court declines to issue a certificate of appealability because Gasque has
not made the requisite showing. A separate Order follows.

Date: April 23, 2014

/s/
James K. Bredar
United States District Judge

or ineffective remedy. See In re Jones, 226 F.3d 328, 333 (4th Cir. 2000).

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