Parnell v. USA - 2255
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
Criminal No. RDB-06-0258
Civil Action No. RDB-16-2698
STATES OF AMERICA,
The pro se Petitioner
Calvin Darnell Parnell ("Petitioner"
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
for the Fourth
Circuit dismissed in part
See Uniled Slales
Parnell, 261 F. App'x 601, 603 (4th Cir. 2008).
Parnell filed his first pro se Motion to Vacate, Set t\side, or Correct
and Order dated February 7, 2011 (ECF Nos. 51 & 52), this Court denied that
See Parnell v. Uniled Slales, No. RDB-09-934,
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
and dismissed his
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.
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
appeals to contain either "newly discovered evidence ... or a new rule of constitutional
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,
second or successive petition.
this Court lacks jurisdiction
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
[tJhe predicate status of (his] prior drug offenses
case does not apply to "serious drug offense"
but only addressed
"residual clause" of the ACCA, 18 U.S.c. ~ 924(e)(2)(B) (ii). The Fourth Circuit's decision is
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.
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.
to 28 U.S.c. ~ 2253 and Rule 11(a) of the Rules Governing
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.
A Certificate of Appealability
to an appeal from the court's
Hadden, 475 F.3d 652, 659 (4th Cir. 2007).
United Statu v.
The United States Court of l\ppeals
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'
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
The United States Supreme Court has
A1,Daniel, 529 U.S. 473, 484 (2000) that "[w]hen the district court denies a
claim, a [Certificate of l\ppealability]
least, that ...
jurists of reason would find it debatable whether the district court was correct
in its procedural
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.
May 24, 2017
Richard D. Bennett
United States DistrictJudge
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?