Avery v. Morgan

Filing 7

MEMORANDUM OPINION. Signed by Judge Roger W Titus on 2/28/2013. (c/m 2/28/2013 eb)(ebs2, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DARRELL AVERY, #357-310,

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Petitioner,
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v.
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Civil Action No. RWT-12-3612
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J. PHILIP MORGAN, et al.,
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Respondents.
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MEMORANDUM OPINION
On December 10, 2012, the Court originally received for filing Petitioner’s pro se 28 U.S.C.
§ 2254 Petition for writ of habeas corpus. ECF No. 1. A Court-ordered Supplemental Petition was
filed on January 16, 2013. ECF No. 5. This is the second § 2254 petition filed by Petitioner to
attack his 2009 conviction and life sentence imposed by the Circuit Court for Baltimore County,
Maryland.1 He seemingly raises grounds going to the effectiveness of counsel, the voluntariness of
the plea, and sentencing court violations of the plea agreement. ECF Nos. 1 & 5. On January 16,
2013, the Court ordered Respondents to file an Answer to the Petition, and also granted Petitioner
time to file a reply. ECF No. 4. Respondents’ Answer solely addresses the successiveness of
Petitioner’s application.2 ECF No. 6.
Under 28 U.S.C. § 2244, Petitioner may only file a second or successive habeas corpus
petition if he has first moved the appropriate court for an order authorizing the district court to
consider his application. See 28 U.S.C. § 2244(b)(3); Felker v. Turpin, 83 F.3d 1303, 1305-07 (11th
Cir. 1996). Petitioner’s first § 2254 application was dismissed as untimely. ECF No. 6 at Ex. 1.
This constitutes a decision on the merits that renders future § 2254 petitions challenging the same
conviction second or successive petitions under § 2244(b). See Quezada v. Smith, 624 F.3d 514,
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See Avery v. Shearin, et al., Civil Action No. RWT-11-330 (D. Md.)

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Although afforded the opportunity, Petitioner has not filed a reply.

519-20 (2d Cir. 2010); McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009). The pending Petition
is successive and this Court may not consider it unless the United States Court of Appeals for the
Fourth Circuit enters an order authorizing this Court to do so. See 28 U.S.C. § 2244(b)(3)(A); see
also In re Vial, 115 F.3d 1192, 1197-98 (4th Cir. 1997). Because it does not appear that Petitioner
has complied with this “gatekeeper” provision, the pending application for habeas corpus relief must
be dismissed pursuant to 28 U.S.C. § 2244(b)(3).
The United States Court of Appeals for the Fourth Circuit has set forth instructions for the
filing of a “motion” to obtain the aforementioned authorization Order. The procedural requirements
and deadlines for filing the motion are extensive. Consequently, this Court has attached hereto a
packet of instructions promulgated by the Fourth Circuit which addresses the comprehensive
procedure to be followed should Petitioner wish to seek authorization to file a successive petition. It
is emphasized that Petitioner must file the motion with the Fourth Circuit and obtain authorization to
file his successive petition before this Court may examine his claims.
Petitioner must satisfy the provisions of 28 U.S.C. § 2253(c) before a Certificate of
Appealability may issue. Section 2253 provides that a Certificate of Appealability may issue “only
if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). Petitioner is not required to show that he would prevail on the merits. See Slack v.
McDaniel, 529 U.S. 473, 483-84 (2000). When a district court dismisses a habeas petition solely on
procedural grounds, a Certificate of Appealability will not issue unless the petitioner can
“demonstrate both (1) ‘that jurists of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right’ and (2) ‘that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.’” Rouse v. Lee, 252 F.3d
676, 684-85 (4th Cir. 2001) (quoting Slack, 529 U.S. at 484). The denial of a Certificate of
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Appealability does not preclude a petitioner from seeking permission to file a successive petition or
from pursuing his claims upon receiving such permission. Because Petitioner has not made a
substantial showing of the denial of his constitutional rights, this Court will not issue a Certificate of
Appealability.
For the reasons set forth herein, the Court is without jurisdiction to review the instant Petition
and the Petition shall be dismissed. A separate order shall be entered reflecting the ruling.

Date: February 28, 2013

/s/
ROGER W. TITUS
UNITED STATES DISTRICT JUDGE

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