Saunders v. USA - 2255
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
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
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
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).
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.
Castro v. United States, 540 U.S. 375, 381 (2003).
may not evade the procedural requirements for successive § 2255
motions by attaching other titles to his motion.
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
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
acknowledges that has not received authorization from the Fourth
Circuit Court of Appeals to file the instant motion.
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
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
It is correct “that a numerically second § 2255 motion should
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).
That approach, however, does not
constitutional law because the “facts” are unchanged.
law potentially has changed.
As in In re Hubbard, 825 F.3d 225
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
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.
appealability (“COA”) is issued, a petitioner may not appeal the
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
28 U.S.C. § 2253(c)(2).
debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004)
(citation and internal quotation marks omitted), or that “the
The denial of a COA does not preclude a petitioner from
pursuing his claims upon receiving such permission.
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
Accordingly, it is this 23rd day of December, 2016, by the United
Petitioner’s motion to vacate, set aside, or correct
sentence (ECF No. 473) BE, and the same hereby IS, DISMISSED;
The Clerk is DIRECTED to provide a copy of this Order
to counsel of record and directly to Mr. Saunders along with
file a successive petition with the appellate court and to CLOSE
DEBORAH K. CHASANOW
United States District Judge
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