Adams v. Wilson

Filing 16

FINAL ORDER. The Court ADOPTS and APPROVES the Magistrate Judge's 15 Report and Recommendations filed on February 19, 2016 in its entirety as the Court's own opinion. It is therefore, ORDERED that the Petition be DISMISSED WITHOUT PREJU DICE. PETITIONER IS ADVISED that he must file a § 2255 petition in the district in which he was sentenced, delineating his prayer for relief pursuant to Johnson before June 26, 2016, or pursuant to Newbold before June 30, 2016. The Clerk is DIRECTED to forward a copy of this Order to the Petitioner and counsel of record for the Respondent. Signed by District Judge Arenda L. Wright Allen on 4/25/2016. Copies mailed 4/26/2016. (Attachments: # 1 Successive Application) (jmey, )

United States Court of Appeals for the Fourth Circuit
Instructions for Filing Motion Under 28 U.S.C. § 2244 For Order
Authorizing District Court to Consider Second or Successive
Application for Relief Under 28 U.S.C. §§ 2254 or 2255

1.

Use the attached form to file a Motion Under U.S.C. § 2244 For Order Authorizing

District Court to Consider Second or Successive Application for Relief Under 28 US C
§§ 2254 or 2255.

2.

Answer completely all the questions on the attached form. Your failure to provide

3.

Attach to your motion copies of the following documents:

complete answers may result in the Court's denying your motion.

A.

The § 2254 or § 2255 applications you want to file in the district court if the
Court of Appeals grants your motion.

B.

C.

All § 2254 or § 2255 applications you previously filed in any federal court

challenging the judgment of conviction or sentence you now want to challenge.
All court opinions and orders, final and interlocutory, disposing of the claims in
your previous § 2254 or § 2255 applications that challenged the judgment of

conviction or sentence you now want to challenge.

D.

All magistrate judge's reports and recommendations issued in all previous

§ 2254 or § 2255 applications that challenged the judgment or conviction or
sentence you now want to challenge.

4.
You must sign the motion in three places at the end of page 4. Your failure to sign
the motion or to complete the Proof of Service may result in the Court's denying your motion.

5.

You must file with the Court of Appeals the original and three copies of your motion

and all documents attached to it. Your failure to provide the original and three copies may
result in the Court's denying your motion.

6.
If your motion seeks relief under 28 U.S.C. §2254, you must serve acopy of the motion
and all documents attached to it on the attorney general of the state in which you are confined
Your failure to serve the attorney general may result in the Court's denying your motion.
7.
If your motion seeks relief under 28 U.S.C. §2255, you must serve acopy of the motion
and all documents attached to it on the United States Attorney for the federal judicial district in

which you were convicted. Your failure to serve the United States may result in the Court's

denying your motion.

Motion Under 28 U.S.C. § 2244 For Order Authorizing District Court to Consider

Second or Successive Application for Relief Under 28 U.S.C. §§ 2254or 2255

United States Court of Appeals for the Fourth Circuit
Name of Movant

Prisoner Number

Case Number

(leave blank)
Place of Confinement

In Re:

, Movant

1. Name and location of court which entered the judgment of conviction from which relief is sought:

2. Parties' Names:
3. Docket Number:

-VS.

4. Date Filed:

5. Date of judgment of conviction:

6. Length of sentence:

7. Nature of offense(s) involved (all counts):

8. What was your plea? (Check one)

fj Not Guilty

•

Guilty

I I Nolo Contendere

9. If you pleaded not guilty, what kind of trial did you have? (Check one)

I IJury

| | Judge only

10. Did you testify at yourtrial? (Check one)

•

Yes

•

11. Did you appeal from the judgment ofconviction? (Check one)

•

Yes

• No

no

12. If you did appeal, what was the

Name of courtappealed to:

Parties'names on appeal:
Docket number of appeal:

vs
_Date of decision

Result of appeal:

13. Other than a direct appeal from the judgment of conviction and sentence, have you filed any other petitions applica
tions for relief, or other motions regarding this judgment in any federal court?

QYes

D No

14. If you answered "Yes" to question 13, answer the following questions:
A. First Petition, Application, or Motion

(1) In what court did you file the petition, application, or motion?
(2) What were the parties' names?

vs.

(3) What was the docket number of the case?
(4) What relief did you seek?

(5) What grounds for relief did you state in your petition, application, or motion?

(6) Did the court hold an evidentiary hearing on your petition, application or motion?

(7) Whatwas the result?

rj Yes

Q Relief granted

Q Relief denied on the merits

| | Relief denied for

Q No

Q Relief denied for procedural default

failure to exhaust

(8) Date of court's decision:

B. Second Petition, Application, or Motion

(1) In what court did you file the petition, application, or motion?
(2) What were the parties' names?

vs.

(3) What was the docket number of the case?
(4) What relief did you seek?
(5) What grounds for relief did you state in your petition, application, or motion?

(6) Did the court hold an evidentiary hearing on your petition, application or motion?
(7) What was the result?

Q Yes

Q Relief granted

Q Relief denied on the merits

I | Reliefdenied for

fj No

PJ Reliefdenied for procedural default

failure to exhaust

(8) Date of court's decision:

C. Third and Subsequent Petitions, Applications, or Motions

For any third or subsequent petition, application, or motion, attach a separate page providing the information
required in items (1) through (8) above for first and second petitions, applications, or motions.

-2

D. Prior Appellate Review(s)

Did you appeal the results of your petitions, applications, or motions to a federal court of appeals having
jurisdiction over your case? If so, list the docket numbers and dates of final disposition for all subsequent
petitions, applications, or motions filed in a federal court of appeals.
First petition, application, or motion
Second petition, application, or motion
Subsequent petitions, applications or motions
Subsequent petitions, applications or motions
Subsequent petitions, applications or motions
Subsequent petitions, applications or motions

Yes
Yes
Yes
Yes
Yes

Yes

Appeal No.
Appeal No.
Appeal No.
Appeal No.

No

No

JNo
No

Appeal No.
Appeal No.

No

UNo

Ifyou did not appeal from the denial of reliefon any of your prior petitions, applications, or motions, state which
denials you did not appeal and explain why you did not.

15. Did you present any of the claims in this application in any previous petition, application, or motion for relief

under 28 U.S.C. §2254 or §2255? (Check one)

fj Yes

fj No

16. If your answer to question 15 is "Yes," give the docket number(s) and court(s) in which such claims were raised
and state the basis on which relief was denied.

17. If your answer to question 15 is "No," why not? This Court will grant you authority to file in the district court
only if you show that you could not have presented your present claims in your previous § 2254 or § 2255 app
lication because . . .

A. (For § 2255 motions only) the claims involve "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 [you] guilty"; or,

B. (For § 2254 petitions only) "the factual predicate for the claim could not have been discovered previously
through the exercise of due diligence" and "the facts underlying the claim, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have found [you] guilty of the offense"; or.

C. (For both § 2254 and § 2255 applicants) the claims involve "a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court [of the United States], that was previously
unavailable."

I did not present the following claims in any previous petition, application, or motion for relief under 28 U.S.C.
§ 2254:

I did not present the claims listed above in any previous petition, application, or motion because

Movant prays that the United States Court of Appeals for the Fourth Circuit grant an Order Authorizing the
District Court to Consider Movant's Second or Successive Application for Relief Under 28 U.S.C. §§ 2254 or
2255.

Movant's Signature

I declare under Penalty of Perjury that my answers to all questions in this Motion are true and correct. Executed
on

[date]

Movant's Signature

Proof

of S e r v i c e

A copy of this motion and all attachments must be sent to the state attorney general (§ 2254 cases) or the
United States Attorney for the United States judicial district in which you were convicted (§ 2255 cases).

I certify that on

I mailed a copy of this motion and all attachments
[date]

to

at the following address:

Movant's Signature