Parnell v. USA - 2255

Filing 2

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
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 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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