Gary v. USA
ORDER Dismissing Motion to Vacate, Set Aside or Correct Sentence (2255). Court declines to issue a Certificate of Appealability. Signed by Senior Judge Graham Mullen on 11/7/2017. (Pro se litigant served by US Mail.)(jaw)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
JOHN BRANDON GARY,
UNITED STATES OF AMERICA,
THIS MATTER is before the Court on Petitioner’s Motion to Vacate, Set Aside, or
Correct Sentence filed under 28 U.S.C. § 2255.1 (Doc. No. 1). For the reasons that follow, the
Court finds that this is an unauthorized, successive petition, and the Court therefore dismisses the
Motion to Vacate.
Petitioner was convicted after a jury trial in this Court of numerous counts of armed bank
robbery, in violation of 18 U.S.C. § 2113(d), and using, carrying, and brandishing a firearm
during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1). See (Crim.
Case No. 3:00-cr-199-GCM-1, Doc. No. 67: Amended Judgment). This Court subsequently
sentenced Petitioner to a total of 1,371 months in prison. (Id.).
On June 17, 2005, Petitioner filed a motion to vacate his sentence under 28 U.S.C. § 2255.
Petitioner has labeled his action a “petition under 18 U.S.C. § 3742,” but it is in substance a
motion to vacate, set aside, or correct sentence. See Raines v. United States, 423 F.2d 526, 528
(4th Cir. 1970) (“[I]t is the substance of the motion, not the label or name assigned to it by a pro
se petitioner, that determines whether a court views a motion as arising under § 2255.”).
(Id., Doc. No. 72). On August 22, 2008, this Court denied and dismissed the motion to vacate
with prejudice on the merits. (Id., Doc. No. 73). Petitioner filed the instant action on November
1, 2017, bringing various claims of ineffective assistance of counsel, and he also brings a
substantive claim under the Supreme Court decision in Dean v. United States, 137 S. Ct. 1170
STANDARD OF REVIEW
Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, sentencing courts
are directed to promptly examine motions to vacate, along with “any attached exhibits and the
record of prior proceedings” in order to determine whether a petitioner is entitled to any relief.
After having considered the record in this matter, the Court finds that no response is necessary
from the United States. Further, the Court finds that this matter can be resolved without an
evidentiary hearing. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).
Petitioner filed the instant motion to vacate on November 1, 2017, seeking to have this Court
vacate his sentence. Petitioner filed a previous motion to vacate the same conviction and
sentence, and this Court denied the motion to vacate. Thus, this is a successive petition.
Pursuant to 28 U.S.C. § 2244(b)(3)(A), “[b]efore a second or successive application permitted by
this section 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.” Petitioner has not
shown that he has obtained the permission of the Fourth Circuit Court of Appeals to file a
successive petition. See also 28 U.S.C. § 2255(h) (stating that “[a] second or successive motion
must be certified as provided in section 2244 by a panel of the appropriate court of appeals”).
Accordingly, this successive petition must be dismissed.2 See Burton v. Stewart, 549 U.S. 147,
153 (2007) (holding that failure of petitioner to obtain authorization to file a “second or
successive” petition deprived the district court of jurisdiction to consider the second or
successive petition “in the first place”).
For the foregoing reasons, the Court will dismiss Petitioner’s Section 2255 Motion to Vacate
for lack of jurisdiction because the motion is a successive petition and Petitioner has not first
obtained permission from the Fourth Circuit Court of Appeals to file the motion.
IT IS, THEREFORE, ORDERED that:
Petitioner’s Motion to Vacate, (Doc. No. 1), is DISMISSED as a successive
IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules
Governing Section 2254 and Section 2255 Cases, this Court declines to issue a
certificate of appealability. See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell,
537 U.S. 322, 338 (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. 473,
484 (2000) (when relief is denied on procedural grounds, a petitioner must
establish both that the dispositive procedural ruling is debatable and that the
petition states a debatable claim of the denial of a constitutional right).
The petition also appears to be time-barred under Section 2255(f)(1).
Signed: November 7, 2017
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