Adams v. USA

Filing 2

ORDER dismissing as successive 1 Motion to Vacate, Set Aside or Correct Sentence (2255). Court declines to issue a Certificate of Appealability. Signed by District Judge Frank D. Whitney on 3/22/2013. (Pro se litigant served by US Mail.)(eef)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:13-cv-167-FDW
(3:06-cr-391-FDW-1)
CLARENCE ANTWAINE ADAMS,

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Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

ORDER

THIS MATTER is before the Court on initial review of Petitioner’s Motion to Vacate, Set
Aside or Correct Sentence filed under 28 U.S.C. § 2255. (Doc. No. 1). No response is necessary
from the Government. For the reasons that follow, Petitioner’s Section 2255 Motion will be
DISMISSED.
I.

BACKGROUND

On November 28, 2007, Petitioner was convicted on one count of possession with intent
to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), and he was sentenced to 115 months’
imprisonment. (3:06-cr-391: Doc. 127: Judgment in a Criminal Case). Petitioner did not file a
direct appeal from this criminal judgment.
On December 11, 2008, Petitioner filed a Section 2255 motion to vacate alleging
ineffective assistance of counsel. (3:08-cv-573-FDW). This motion was denied and dismissed by
Order entered on December 17, 2008, and Petitioner filed an appeal to the United States Court of
Appeals for the Fourth Circuit. In a per curiam decision, the Court dismissed his appeal. United
States v. Adams, No. 09-8061 (4th Cir. Jan. 22, 2010) (unpublished).
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On March 14, 2013, Petitioner returned to this Court with a second motion under Section
2255 in which he contends he is entitled to relief based on recent decisions from the Supreme
Court of the United States: Missouri v. Frye, 132 S.Ct. 1399 (2012 and Lafler v. Cooper, 132
S.Ct. 1376 (2012). Petitioner argues that the Supreme Court announced a new rule of law in
these cases, namely, that the Sixth Amendment entitles a defendant to effective assistance of
counsel during the plea bargaining process, and this new rule is retroactive to cases on collateral
review. (3:13-cv-167, Doc. No. 1).1
II.

DISCUSSION

The Antiterrorism and Effective Death Penalty Act (AEDPA) provides, in relevant part,
that “[a] second or successive motion [under Section 2255] 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.
28 U.S.C. § 2255(h).
It appears from the present Section 2255 motion that Petitioner is mindful of the
prohibition against filing a second, or successive Section 2255 motion. However, in the event
Petitioner is motioning for permission from this Court to file a second or successive petition, his
effort must fail. As noted above, such authorization must be granted by the appropriate court of
appeals, in this case, the Fourth Circuit Court of Appeals. As Petitioner has already filed one
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Even if this § 2255 motion were not successive, courts have widely held that decisions in Frye and Lafler are not
retroactive to cases on collateral review because they did not announce a new rule of constitutional law. See, e.g., In
re Perez, 682 F.3d 930, 932-34 (11th Cir. 2012); In re King, 697 F.3d 1189 (5th Cir. 2012) (per curiam opinion
agreeing with the holding in the Eleventh Circuit’s opinion in the case of In re Perez).

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unsuccessful § 2255 motion and he has not demonstrated that he has secured the necessary
authorization to initiate a successive Section 2255 proceeding, the Court is without jurisdiction to
consider the merits of this present motion and it will be dismissed.
III. CONCLUSION
IT IS, THEREFORE, ORDERED that Petitioner’s Section 2255 Motion is
DISMISSED as successive. (Doc. No. 1).
IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing
Section 2255 Cases, this Court declines to issue a certificate of appealability as Petitioner has not
made a substantial showing of a denial of a constitutional right. 28 U.S.C. § 2253(c)(2); MillerEl v. Cockrell, 537 U.S. 322, 336-38 (2003) (stating that in order to satisfy § 2253(c), a
petitioner must demonstrate that reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong); Slack v. McDaniel, 529 U.S. 474, 484 (2000)
(holding that when relief is denied on procedural grounds, a petitioner must establish both that
the correctness of the dispositive procedural ruling is debatable and that the petition states a
debatably valid claim of the denial of a constitutional right).
Signed: March 22, 2013

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