Parnell v. USA - 2255
Filing
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MEMORANDUM OPINION. Signed by Judge Richard D. Bennett on 5/24/2017. (kw2s, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
CALVIN Dt\RNELL
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PARJ'\lELL,
Petitioner
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Criminal No. RDB-06-0258
v.
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Civil Action No. RDB-16-2698
UNITED
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STATES OF AMERICA,
Respondent.
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MEMORANDUM OPINION
The pro se Petitioner
Calvin Darnell Parnell ("Petitioner"
or "Parnell")
pled guilty
before this Court to one count of possession of a firearm by a convicted felon, in violation
of 18 U.S.c. ~ 922 (g). See J., p. 1, ECF No. 26. l\t sentencing, this Court found that Parnell
was an "armed career criminal" under the Armed Career Criminal Act ("ACCA"), 18 U.S.c.
~ 924(e), on the basis of six prior "serious drug offenses."
Parnell to 188 months imprisonment,
followed by five years on supervised release. [d. at 2-3.
On appeal, the United States Court of Appeals
Parnell's appeal and otherwise
Accordingly, this Court sentenced
affirmed
the
for the Fourth
J udl,,'1l1entof
Circuit dismissed in part
this Court.
See Uniled Slales
I).
Parnell, 261 F. App'x 601, 603 (4th Cir. 2008).
Subsequently,
Parnell filed his first pro se Motion to Vacate, Set t\side, or Correct
Sentence
pursuant
Opinion
and Order dated February 7, 2011 (ECF Nos. 51 & 52), this Court denied that
]\[otion.
See Parnell v. Uniled Slales, No. RDB-09-934,
2011).
to 28 U.S.c. ~ 2255 (ECF No. 38) in this Court.
2011 WL 484200, at *5 (D. Md. Feb. 7,
The Fourth Circuit denied Parnell a Certificate of t\ppealability
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Via Memorandum
and dismissed his
.'
appeal.
See United States v. Pamell, 463 F. App'x 184, 185 (4th Cir. 2012).
Parnell has now
filed a second pm se Motion to Vacate, Set l\side, or Correct Sentence pursuant to 28 U.S.c.
~ 2255 (ECF No. 66), arguing that rus prior drug convictions
no longer qualify as predicate
offenses under the Armed Career Criminal Act in light of the United States Supreme Court's
intervening decision inlohnsol1ll.
The l\ntiterrorism
United States, 135 S. Ct. 2551 (2015).
and Effective Death Penalty Act of 1996 provides that a second or
successive Section 2255 petition must be certified by a panel of the appropriate
court of
appeals to contain either "newly discovered evidence ... or a new rule of constitutional
made retroactive
law,
to cases on collateral review by the Supreme Court, that was previously
unavailable." 28 U.S.c. ~ 2255(h)(1)-(2); Jee al.ro~ 2244(b)(3)(1\); Felker v. Turpin, 518 U.S. 651,
664 (1996).
Absent
pre-filing
second or successive petition.
authorization,
this Court lacks jurisdiction
to consider
a
United States v. lV"inuto"k, 340 F.3d 200, 205 (4th Cir. 2003).
Via Order dated July 28, 2016 (ECF No. 67), the United States Court of Appeals for
the Fourth Circuit has denied Parnell's motion for authorization
to file a successive petition.
The Fourth Circuit held that Parnell had "fail led] to make the prima facie showing necessary
to receive the requested authorization
was unaffected
predicate
by lohman.").
convictions,
....
The lohman
[tJhe predicate status of (his] prior drug offenses
case does not apply to "serious drug offense"
but only addressed
the definition
of "violent
felony" under
the
"residual clause" of the ACCA, 18 U.S.c. ~ 924(e)(2)(B) (ii). The Fourth Circuit's decision is
not reviewable.
See 28 U.S.c. ~ 2244(b)(3)(E)
("The grant or denial of an authorization
court of appeals to file a second or successive application
shall not be appealable ....
Accordingly, this Court lacks jurisdiction to consider the pending 1\lotion.
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by a
").
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CONCLUSION
Por these reasons, Petitioner
Parnell's second pro se Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.c. ~ 2255 (ECF No. 66) is DISMISSED.
Pursuant
to 28 U.S.c. ~ 2253 and Rule 11(a) of the Rules Governing
Proceedings
under 28 U.S.c. ~ 2255, a court is required to issue or deny a Certificate of Appealability
when it enters a final order adverse to the applicant.
"jurisdictional
prerequisite"
A Certificate of Appealability
to an appeal from the court's
Hadden, 475 F.3d 652, 659 (4th Cir. 2007).
earlier order.
is a
United Statu v.
The United States Court of l\ppeals
for the
Pourth Circuit has held in jonu v. Braxton, 392 P.3d 683, 688 (4th Cir. 2004) that "an order
dismissing a habeas petition without prejudice on the grounds
successive petition constitutes
28 USc. ~ 2253(c)(I)(A),
'the final order in a habeas proceeding'
habeas
Ii.
petition
within the meaning of
and thus that the certificate of appealability requirement
section applies to any appeal from such an order."
held in Slack
that it is an unauthorized
of that
The United States Supreme Court has
A1,Daniel, 529 U.S. 473, 484 (2000) that "[w]hen the district court denies a
on
procedural
grounds
without
reaching
the
prisoner's
underlying
constitutional
claim, a [Certificate of l\ppealability]
least, that ...
jurists of reason would find it debatable whether the district court was correct
in its procedural
ruling."
should issue when the prisoner shows, at
Because reasonable jurists would not find debatable whether this
Court's ruling was correct, a Certificate of Appealability is DENIED.
r\ separate Order follows.
Dated:
May 24, 2017
f2/?P--bh
Richard D. Bennett
United States DistrictJudge
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