Whitener v. USA

Filing 15

ORDER dismissing without prejudice 1 Petition for Writ of Habeas Corpus (2255 Motion). Signed by District Judge Max O. Cogburn, Jr on 3/21/2013. (Pro se litigant served by US Mail.)(eef)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:13-cv-00181-MOC
ERIC LAMONT WHITENER,

)
)
)
)
)
)
)
)
)

Plaintiff,
Vs.
SARA REVELL,
Defendant.

ORDER

THIS MATTER is before the court on preliminary review of petitioner’s Motion to
Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, 1 filed February 29, 2012,
in the Eastern District of North Carolina, and transferred to this district on March 20,2013
In such petition, signed under penalty of perjury, petitioner represents to the court that he
has not “filed petitions for habeas corpus, motions under 28 U.S.C. § 2255, or any other
applications, petitions or motions with respect to this conviction.” Motion at ¶ 11. 2 Such
representation is patently false as petitioner previously challenged the underlying conviction in
United States v. Whitener, 3:90cv85-3-P by later filing a motion seeking Section 2255 relief in
Whitener v. United States, 3:97cv262 (W.D.N.C. 1997), which this court denied in 1997 (see
Order (#6) and Judgment (#7)) and again in 2007 (see Order (#13)) after petitioner filed a
“Motion to Vacate” (#10) the previous Order. Petitioner’s appeal of the 2007 Order denying the
“Motion to Vacate” was dismissed by the Fourth Circuit. Whitener v. United States, No. 08-

1

The United States Court for the Eastern District of North Carolina construed petitioner’s
§ 2241 motion as one made under § 2255.
2
In fairness, petitioner later discusses “the district court’s error in dismissing petitioner’s
first 2255 with prejudice . . . .” Motion at ¶ 13.
1

6300 (4th Cir. July 2, 2008).3 As it appears that petitioner may have perjured himself, the court
will instruct that a copy of this Order be sent to the United States Attorney for whatever action
she deems appropriate.4
Putting aside such misrepresentation, the previous filing and unfavorable disposition of
Whitener v. United States, 3:97cv262 (W.D.N.C. 1997) makes the filing of the instant Motion to
Vacate a second or subsequent petition under the Antiterrorism and Effective Death Penalty Act
(hereinafter the “AEDPA”). See 28 U.S.C. § 2255. Rule 9 of the Rules Governing Section 2255
Proceedings provides, as follows:
Rule 9. Second or Successive Motions
Before presenting a second or successive motion, the moving party must obtain an
order from the appropriate court of appeals authorizing the district court to
consider the motion, as required by 28 U.S.C. § 2255, para. 8.
Rule 9, 28 U.S.C.A. foll. § 2255. The AEDPA requires that a “second or successive motion
must be certified . . . by a panel of the appropriate court of appeals . . .” before it can be filed in
the district court. Id. “Before a second or successive application [for habeas corpus] is filed in the
district court, the applicant shall move in the appropriate court of appeals for an order
authorizing the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). Thus, this
court may not consider the merits of petitioner’s claims because he failed to first obtain
authorization from the Court of Appeals for the Fourth Circuit before filing such second petition.

3

In the underlying criminal action, the court reduced petitioner’s sentence on November
13, 2013, pursuant to “Crack II” as to Counts 3 & 11 from life imprisonment to 360 month in
accordance with 28 U.S.C.§ 994(u). See United States v. Whitener, supra, at (#110). The 105
years consecutive imposed by Judge Potter on the other counts of conviction remained the same.
4
Review of the pleadings transferred from the Eastern District of North Carolina reveals
that such misrepresentation may have resulted in the court and the United States Attorney in that
district expending substantial resources on a matter that, had petitioner been forthcoming, would
have been summarily dismissed.
2

ORDER
IT IS, THEREFORE, ORDERED that:
(1)

petitioner’s Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28

U.S.C. § 2255 is DISMISSED WITHOUT PREJUDICE for failure to first move in the
appropriate court of appeals for an order authorizing the district court to consider the
application; and
(2)

the Clerk of Court shall send a copy of this Order to the United States Attorney

for the Western District of North Carolina as it appears that such petition may contain a
false averment.

Signed: March 21, 2013

3