Hucks v. USA-2255

Filing 2

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 9/5/2019. (c/m 9/5/2019 heps, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
DUVALL HUCKS
:
v.

:

Civil Action No. DKC-16-2379
Criminal No. DKC-95-267-7

:
UNITED STATES OF AMERICA
:
MEMORANDUM OPINION
Petitioner Duvall Hucks (“Petitioner”) filed a paper titled
“permission to file a motion under Title 28 U.S.C. § 2255(3) to
correct an illegal sentence” which has been construed as a motion
to vacate pursuant to 28 U.S.C. § 2255.1

(ECF No. 673).

In

response, the Government filed a motion to dismiss. (ECF No. 677).
Petitioner filed a motion to stay until the Supreme Court of the
United States decided Beckles v. United States.

(ECF No. 680).

In both of Petitioner’s motions, he asserts that he is entitled to
relief under the Supreme Court’s ruling in Johnson v. United

1

A court may re-characterize a motion filed by a selfrepresented litigant to create better correspondence between the
subject of the motion and its underlying legal basis. See Castro
v. United States, 540 U.S. 375, 381 (2003). Petitioner may not
evade the procedural requirements for successive § 2255 motions by
attaching other titles to his motion. Calderon v. Thompson, 523
U.S. 538, 553 (1998) (Regardless of the title assigned by the
litigant, the subject matter of the motion determines its status).
Notice of re-characterization was not required because this was
not Petitioner’s first § 2255 motion challenging this judgment,
and there is no notice requirement for successive petitions. See
Castro, 540 U.S. at 383.

States, 135 S.Ct. 2551 (2015), striking down the residual clause
in the Armed Career Criminal Act (ACCA).

(ECF Nos. 683, 680).

The Government explains that the holding in Johnson has no
impact

on

Petitioner’s

sentence.

In

support

of

this,

the

Government states that Petitioner was not sentenced as an Armed
Career Criminal, a Career Offender, or under any other statute
affected by the Johnson decision.

(ECF No. 677).

Petitioner was

convicted of conspiracy to possess with intent to distribute and
possession with intent to distribute cocaine in violation of 21
U.S.C. §§ 841 and 846, and drug trafficking crimes are not affected
by the ruling in Johnson.

In accordance with the presentence

report, the court calculated Petitioner’s total offense level to
be 46 and his criminal history category to be III.
advisory guideline range was life imprisonment.

The resulting
On October 7,

1996, the court sentenced Petitioner to life imprisonment.
Further, the Government argues that Petitioner’s motion to
vacate is successive and that Petitioner did not first seek
authorization from the United States Court of Appeals for the
Fourth Circuit to file it.

There can be no dispute that the

instant motion to vacate is not the first such motion filed by
Petitioner.

On October 2, 2000, Petitioner filed his first motion

to vacate (ECF No. 498), which the court denied on August 28, 2001.
(ECF Nos. 541, 542).

On July 10, 2014, the Fourth Circuit denied

Petitioner’s motion for an order authorizing the district court to

2

consider a second or successive application for relief under 28
U.S.C. § 2255.

(ECF No. 619).

It is clear that Petitioner has not received authorization
from the Fourth Circuit to file the instant motion.

Pursuant to

28 U.S.C. § 2255,
A second or successive motion must be
certified as provided in section 2244 by a
panel of the appropriate court of appeals to
contain- (1) newly discovered evidence that,
if proven and viewed in light of the evidence
as a whole, would be sufficient to establish
by clear and convincing evidence that no
reasonable factfinder would have found the
movant guilty of the offense; or (2) a new
rule of constitutional law, made retroactive
to cases on collateral review by the Supreme
Court, that was previously unavailable.
This court is mindful “that a numerically second § 2255 motion
should not be considered second or successive pursuant to §2255(h)
where . . . the facts relied on by the movant seeking resentencing
did not exist when the numerically first motion was filed and
adjudicated.”
Cir. 2015).
his

pending

United States v. Hairston, 745 F.3d 258, 262 (4th

Petitioner, however, has pointed to no new “facts” in
motion,

nor

does

Johnson

apply

to

this

case.

Furthermore, the Supreme Court’s later decision in Beckles v.
United States, 137 S.Ct. 886 (2017), held that the advisory
sentencing guidelines are not subject to the Johnson analysis in
any event.

Petitioner’s only claim is that, under Johnson, the

residual clause in the sentencing guidelines is void for vagueness.

3

Accordingly, the pending motion to vacate is dismissed without
prejudice as successive.
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 address
the comprehensive procedure to be followed should Petitioner wish
to seek authorization to file a successive petition with the Fourth
Circuit.

It is to be emphasized that Petitioner must file the

motion with the Fourth Circuit and obtain authorization to file a
successive petition before this court may examine the claims.
In

addition

to

the

above

analysis,

appealability (“COA”) must be considered.

a

certificate

of

Unless a COA is issued,

a petitioner may not appeal the court’s decision in a § 2255
proceeding.

28 U.S.C. § 2253(c)(1); Fed.R.App.P. 22(b).

A COA

may issue only if the petitioner “has made a substantial showing
of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2).

The petitioner “must demonstrate that reasonable jurists would
find the district court’s assessment of the constitutional claims
debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004)
(citation and internal quotation marks omitted), or that “the
issues presented are adequate to deserve encouragement to proceed
further,” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).

4

The

denial of a COA 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 COA.
A separate Order will be entered.

/s/
DEBORAH K. CHASANOW
United States District Judge

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