Hope v. USA

Filing 2

ORDER dismissing Motion to Vacate, Set Aside or Correct Sentence (2255). Court declines to issue a Certificate of Appealability. Signed by District Judge Max O. Cogburn, Jr on 1/18/2017. (Pro se litigant served by US Mail.)(chh)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:17-cv-14-MOC
(3:11-cr-2-MOC-1)
GIRAUD HOPE,

)
)
Petitioner,
)
)
vs.
)
)
UNITED STATES OF AMERICA,
)
)
Respondent.
)
____________________________________)

ORDER

THIS MATTER is before the Court on initial review of Petitioner’s pro se Motion to
Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. (Doc. No. 1.)
I.

RELEVANT BACKGROUND
On February 9, 2011, Petitioner pled guilty in federal district court, pursuant to a plea

agreement, to one count of conspiracy to commit health-care fraud, in violation of 18 U.S.C. §
1349. See Plea, United States v. Hope, 3:11-cr-2-MOC-1 (W.D.N.C. entered Feb. 2, 2011)
(Doc. No. 8). Despite the fact that the advisory guidelines provided a range of between 37 and
46 months, the Court sentenced Petitioner to 15 months in prison followed by a term of
supervised release. See Judgment, 3:11-cr-2-MOC-1 (Doc. No. 15). Judgment was entered on
November 3, 2011. Petitioner did not enter a direct appeal.
After successfully completing the term of imprisonment, Petitioner began serving the
supervised release portion of his sentence, but was brought before the Court on a violation of the
terms of supervised release. On October 14, 2014, the Court entered a Judgment for Revocation
of Supervised Release, imposing a sentence of nine months in prison, followed by 24 months of
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supervised release. See SRV Judgment, 3:11-cr-2-MOC-1 (Doc. No. 28). Petitioner did not
appeal the Judgment.
On September 2, 2015, Petitioner filed a pro se Motion to Vacate, Set Aside, or Correct
Sentence under 28 U.S.C. § 2255, challenging his 2011 Judgment for conspiracy to commit
health-care fraud. Motion to Vacate, Hope v. United States, 3:15-cv-408-MOC (N.C.W.D. filed
Sept. 2, 2015) (Doc. No. 1). On January 5, 2016, the Court entered an Order dismissing the
Motion to Vacate as untimely. See Order Dismiss Mot. to Vacate, 3:15-cv-408-MOC (Doc. No.
12). On May 23, 2016, the Fourth Circuit Court of Appeals entered an unpublished opinion
dismissing Petitioner’s appeal of this Court’s Order. See United States v. Hope, 639 F. App’x
961 (4th Cir.) (Mem), cert. denied, 137 S. Ct. 408 (2016) (Mem).
Petitioner filed the instant § 2255 Motion to Vacate, Set Aside, or Correct Sentence onn
January 12, 2017. Petitioner again challenges only his 2011 Judgment for conspiracy to commit
health-care fraud. (Doc. No. 1.)
II.

STANDARD OF REVIEW
The Court is guided by Rule 4(b) of the Rules Governing Section 2255 Proceedings for

the United States District Courts, which directs district courts to examine habeas motions
promptly. Rule 4(b), 28 U.S.C.A. foll. § 2255. When it plainly appears from the motion, any
attached exhibits, and the record of prior proceedings that the moving party is not entitled to
relief, the court must dismiss the motion. Id.
III.

DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 provides for an express

limitation on a prisoner’s ability to attack his criminal judgment in successive collateral
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proceedings. See 28 U.S.C. § 2244. A district court lacks jurisdiction to consider a second or
successive motion filed under § 2255 unless the motion has been certified in advance by a panel
of the appropriate circuit court of appeals. See § 2255(h).
Petitioner has not provided evidence that a panel of the Fourth Circuit Court of Appeals
has authorized him to file a successive motion attacking his 2011 Judgment. See §§ 2244 and
2255. Thus, this Court lacks jurisdiction to consider Petitioner’s § 2255 motion, and it must be
dismissed. See United States v. Winestock, 340 F.3d 200, 205 (4th Cir. 2003).
IT IS, THEREFORE, ORDERED that:
1. Petitioner’s Motion to Vacate, Set Aside or Correct Sentence (Doc. No. 1) is
DISMISSED as an unauthorized successive § 2255 motion; and
2. Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, the 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); Miller-El v. Cockrell, 537 U.S.
322, 336-38 (2003) (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: January 18, 2017

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