Borda v. USA - 2255

Filing 2

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 3/29/2017. (c/m 3/30/2017 aos, Deputy Clerk)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND JOSE HERNAN BORDA Petitioner v UNITED STATES Respondent * * * * * Civil Action No. DKC-17-0762 * Criminal No. DKC-95-267-001 * * * *** MEMORANDUM OPINION On March 15, 2017, Jose Borda filed this Motion to Vacate the four-point level enhancement to his sentence for his role in the offense. ECF No. 685. Borda’s motion to vacate is a second or successive motion, as his first motion to vacate was denied by this court on August 28, 2001. See Borda v. United States, Civil Action No. AW-00-1527 (D. Md. 2000). ECF No. 542. Federal inmates are not permitted to file second or successive motions under § 2255 without obtaining certification to do so from a panel of the appropriate court of appeals. 28 U.S.C. §§ 2255(h), 2244(b). As Borda provides no evidence that he has obtained pre-filing authorization from the United States Court of Appeals for the Fourth Circuit, the motion will be dismissed without prejudice for lack of jurisdiction. A prisoner seeking a motion to vacate has no absolute entitlement to appeal a district court's denial of his motion. See 28 U.S.C. § 2253(c)(1). “A [COA] may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). A 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) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues presented were ‘adequate to deserve encouragement to proceed further,’” Miller–El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting Slack, 529 U.S. at 484). Where, as here, 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.’” Rose v. Lee, 252 F.3d 676, 684–85 (4th Cir. 2001) (quoting Slack, 529 U.S. at 484). Denial of a Certificate of Appealability does not prevent Borda from seeking permission to file a successive petition or pursuing his claims after obtaining such permission. Borda may seek redress by filing a motion to vacate, set aside or correct sentence in this court after obtaining the requisite pre-authorization from the United States Court of Appeals for the Fourth Circuit. An Order consistent with this Memorandum Opinion follows. March 29, 2017 __________/s/_____________________ DEBORAH K. CHASANOW United States District Judge 2

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