Saunders v. USA - 2255

Filing 2

MEMORANDUM OPINION and ORDER as to Henry Antoine Saunders GRANTING 475 motion to dismiss, DISMISSING 473 motion to vacate, set aside, or correct sentence, DECLINING to issue a certificate of appealability, and DIRECTING the Clerk to CLOSE Civil Action No. DKC 16-2399 (c/m to Henry Antoine Saunders with instructions relative to filing a successive petition with the appellate court 12/23/16 sat). Signed by Judge Deborah K. Chasanow on 12/23/2016. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
HENRY ANTOINE SAUNDERS
:
v.

:

Civil Action No. DKC 16-2399
Criminal No. DKC 03-0484-002

:
UNITED STATES OF AMERICA
:
MEMORANDUM OPINION AND ORDER
Petitioner Henry Saunders filed a motion titled “Motion for
Reduction of Sentence Reduction per 18 USC 3582(c)(2) in light
of

Johnson,

S.Ct.

(2015)

reduction/modification

of

and

Welch,

supervised

S.Ct.

release

(2016)
with

and

for

preliminary

leave to proceed and file sought” (ECF No. 473) which has been
construed as a Motion to Vacate pursuant to 28 U.S.C. § 2255.1
In

his

motion

Petitioner

asserts

that

he

is

entitled

to

a

reduction of his sentence under the Supreme Court’s ruling in
Johnson v. United States, 135 S.Ct. 2551 (2015), striking down
the residual clause in the Armed Career Criminal Act (ACCA).

1

A court may recharacterize 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 recharacterization 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.

Petitioner states that “he was charged with a gun under 18 USC
924(c) for mere gun possession without more.”
In response to Petitioner’s motion, the government filed a
motion to dismiss on August 15, 2016 (ECF No. 475) asserting
that

Petitioner’s

motion

must

be

dismissed

because

it

is

successive and he did not first seek authorization from the
Fourth Circuit Court of Appeals to file it.

Id. at p. 2.

Petitioner concedes that the instant Motion to Vacate is
not the first such motion he has filed.

On August 25, 2011,

Petitioner filed a Motion to Vacate (ECF No. 351), which was
denied

on

November

8,

2011

(ECF

No.

361).

Petitioner

also

acknowledges that has not received authorization from the Fourth
Circuit Court of Appeals to file the instant motion.

Instead,

he contends that this motion should not be considered “second or
successive” because it is based on “facts” that did not exist at
the time of the first motion, citing United States v. Hairston,
754 F.3d 258 (4th Cir. 2014).

Petitioner is mistaken and the

motion to dismiss will be granted.
Under 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
containB(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
2

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.
It is correct “that a numerically second § 2255 motion should
not

be

where

considered
.

.

.

second

the

or

facts

successive

relied

on

pursuant

by

the

to

§2255(h)

movant

seeking

resentencing did not exist when the numerically first motion was
filed and adjudicated.”

United States v. Hairston, 745 F.3d

258, 262 (4th Cir. 2015).
apply

when

a

petitioner

That approach, however, does not
seeks

to

rely

on

a

new

constitutional law because the “facts” are unchanged.

rule

of

Only the

law potentially has changed.

As in In re Hubbard, 825 F.3d 225

(4th

must

Cir.

2016),

petitioner

first

apply

to

the

Fourth

Circuit for approval.
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
and attached hereto is 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 with the appellate court.

3

In

addition

appealability

to

must

the

be

above

analysis,

considered.

a

certificate

of

a

certificate

of

Unless

appealability (“COA”) is issued, a petitioner may not appeal the
court’s

decision

in

a

§

2255

proceeding.

2253(c)(1); Fed. R. App. P. 22(b).

28

U.S.C.

§

A COA may issue only if the

petitioner “has made a substantial showing of the denial of a
constitutional right.”
“must

demonstrate

district

court’s

28 U.S.C. § 2253(c)(2).

that

reasonable

assessment

of

jurists
the

The petitioner
would

find

constitutional

the

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

Miller-El

deserve

(2003).

The denial of a COA does not preclude a petitioner from

seeking

permission

a

537

successive

U.S.

petition

322,

to

further,”

file

Cockrell,

encouragement

proceed

to

v.

to

or

pursuing his claims upon receiving such permission.

327

from

Because

Petitioner has not made a substantial showing of the denial of
her constitutional rights, this court will not issue a COA.
For the reasons set forth herein, this court is without
jurisdiction

to

review

the

instant

Motion

to

Vacate.

Accordingly, it is this 23rd day of December, 2016, by the United
States

District

Court

for

the

District

ORDERED that:
4

of

Maryland,

hereby

1.

Respondent’s

motion

to

dismiss

(ECF

No.

475)

IS

GRANTED;
2.

Petitioner’s motion to vacate, set aside, or correct

sentence (ECF No. 473) BE, and the same hereby IS, DISMISSED;
3.

The

court

DECLINES

to

issue

a

certificate

of

appealability; and
4.

The Clerk is DIRECTED to provide a copy of this Order

to counsel of record and directly to Mr. Saunders along with
instructions

should

Petitioner

wish

to

seek

authorization

to

file a successive petition with the appellate court and to CLOSE
this case.

/s/
DEBORAH K. CHASANOW
United States District Judge

5