Parnell v. USA - 2255

Filing 2

MEMORANDUM OPINION. Signed by Judge Richard D. Bennett on 5/24/2017. (kw2s, Deputy Clerk)

Download PDF
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND CALVIN Dt\RNELL * PARJ'\lELL, Petitioner * Criminal No. RDB-06-0258 v. * Civil Action No. RDB-16-2698 UNITED * STATES OF AMERICA, Respondent. * * * * * * * * * * * * * 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 1 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 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. 2 by a "). .' 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 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?