Tory v. Lee
Filing
2
MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 11/13/13. Copy sent: Yes(tdai, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
MICHAEL ELLERY TORY, SR.,
Petitioner,
Civil Action No. 3:03CV178
v.
Civil Action No. 3:13CV758
JACK LEE,
Respondent.
MEMORANDUM OPINION
By Memorandum Opinion and Order entered on December 19, 2003, the Court dismissed
a 28 U.S.C. § 2241 petition from Petitioner challenging his convictions for first degree murder,
carjacking, attempted abduction, and two counts of use of a firearm in the commission of a
felony. See Tory v. Lee, No. 3:03CV178 (E.D. Va. Dec. 19, 2003), ECF No. 12-13.
Petitioner now submits a "Motion requesting an authorization order to file a second Writ of
Habea[ ]s Corpus." (ECF No. 19.)
The Antiterrorism and Effective Death Penalty Act of 1996 restricted the jurisdiction of
the district courts to hear second or successive applications for federal habeas corpus reliefby
prisoners attacking the validity of their convictions and sentences by establishing a
"'gatekeeping' mechanism." Felker v. Turpin, 518 U.S. 651, 657 (1996). Specifically, "[b]efore
a second or successive application permitted by this section is filed in the district court, the
applicant shall move in the appropriate courtof appeals for an order authorizing the district court
to consider the application." 28 U.S.C. § 2244(b)(3)(A).
The United States Court of Appeals for the Fourth Circuithas held that inmates may not
avoid the bar on successive collateral attacks on their convictions and sentences by inventive
labeling. See United States v. Winestock, 340 F.3d 200,206 (4th Cir. 2003). "Call it a motion
for a new trial, arrest of judgment, mandamus, prohibition, coram nobis, coram vobis, audita
querela, certiorari, capias, habeas corpus, ejectment, quare impedit... or an application for a
Get-Out-of-Jail-Card; the name makes no difference. It is substance that controls." Melton v.
United States, 359 F.3d 855, 857 (7th Cir. 2004) (citing Thurman v. Gramley, 97 F.3d 185, 186-
87 (7th Cir. 1996)). "Any motion filed in the district court that imposed the sentence, and
substantively within the scope of § 2255[(a)], is a motion under § 2255, no matter what title the
prisoner plasters on the cover." Id. (citing Ramunno v. United States, 264 F.3d 723 (7th Cir.
2001)).
In his Motion, Petitioner "seek[s] relief on his wrongful conviction." (Mot. 1.) He
attempts to bring a new claim pursuant to Lafler v. Cooper, 132 S. Ct. 1376 (2012) arguing that
counsel rendered ineffective assistance with regard to the rejection of a plea offer. (Mot. 1-2.)
Petitioner's challenge to the constitutionality of his conviction falls within the scope of 28 U.S.C.
§ 2254(a). See Gonzalez v. Crosby, 545 U.S. 524, 530-32 (2005) (construing a motion as a
successive "habeas corpus application" if it "seeks vindication" of "a claim" for relief from the
criminal judgment, regardless of the title of the motion). Thus, the Court must treat Petitioner's
Motion (ECF No. 19) as a successive § 2254 petition. The Court has not received authorization
from the Fourth Circuit to hear Petitioner's successive § 2254 petition. Accordingly, the § 2254
Petition will be DISMISSED for WANT OF JURISDICTION.
An appeal may not be taken from the final order in a § 2254 proceeding unless a judge
issues a certificate of appealability ("COA"). 28 U.S.C. § 2253(c)(1)(A). A COA will not issue
unless a prisoner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C.
§ 2253(c)(2). This requirement is satisfied only when "reasonable jurists could debate whether
(or, for that matter, agree that) the petition should have been resolved in a different manner or
that the issues presented were 'adequate to deserve encouragement to proceed further.'" Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4
(1983)).
No law or evidence suggests that Petitioner is entitled to further consideration in this
matter. A COA will be DENIED.
An appropriate Order shall accompany this Memorandum Opinion.
Date://-/3-0
Richmond, Virginia
James R. Spencer
United States District Jurigg
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