Birdsong v. Ponton

Filing 28

MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 9/27/2016. Copy mailed to Pro Se Petitioner. (jsmi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

CHARLES A. BIRDSONG,
Petitioner,
V.

Civil Action No. 3:14CV131

Civil Action No. .•!)':ltoc/6IO
HENRY PONTON,

Respondent.
MEMORANDUM OPINION

Petitioner, a Virginia inmate proceeding pro se, submitted a 28 U.S.C. § 2254 petition
challenging the revocation of his Earned Sentence Credits. On January 9,2015, the Magistrate

Judge issued a Report and Recommendation wherein he recommended dismissing the § 2254
Petition because "Birdsong fails to demonstrate any constitutional violation with respect to the

deprivation of his Earned Sentence Credits

" (ECF No. 16, at 4.) Birdsong failed to file

objections and, by Memorandum Opinion and Order entered on March 10, 2015 the Court
accepted the Report and Recommendation and dismissed the action. (ECF Nos. 19, 20.) On

March 4,2016, Birdsong filed a Motion for Relief under Federal Rule 60(b) ("Rule 60(b)
Motion," ECF No. 23).

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 relief by

prisoners attacking the validity of their convictions and sentences by establishing a "gatekeeping
mechanism." Felker v. Turpin, 518 U.S. 651, 657 (1996) (intemal quotation marks omitted).

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 court of 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 Circuit has held "that district courts
must treat Rule 60(b) motions as successive collateral review applications when failing to do so

would allow the applicant to 'evade the bar against relitigation of claims presented in a prior

application or the bar against litigation of claims not presented in a prior application.'" United
States V. Winestock, 340 F.3d 200, 206 (4th Cir. 2003) (quoting Calderon v. Thompson, 523 U.S.

538, 553 (1998)). Additionally, the Fourth Circuit has provided the following guidance in
distinguishing between a proper Rule 60(b) motion and an improper successive § 2255 motion or
habeas petition:

[A] motion directly attacking the prisoner's conviction or sentence will usually
amount to a successive application, while a motion seeking a remedy for some
defect in the collateral review process will generally be deemed a proper motion
to reconsider. Thus, a brand-new, free-standing allegation of constitutional error
in the underlying criminal judgment will virtually always implicate the rules
governing successive applications. Similarly, new legal arguments or proffers of
additional evidence will usually signify that the prisoner is not seeking relief
available under Rule 60(b) but is instead continuing his collateral attack on his
conviction or sentence.

Id. at 207 (citations omitted). Here, Birdsong's Rule 60(b) Motion raises challenges to his
revocation of his Earned Sentence Credits, rather than any defects in his federal habeas
proceedings. 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 on the motion). Birdsong once again contends that that the
deprivation of his Earn Sentence Credits was unconstitutional because he was not provided with
an institutional appeal. (Rule 60(b) Mot. ^ 6). Accordingly, the Court must treat the Rule 60(b)
Motion as a successive § 2254 petition.

The Clerk will be directed to assign a civil action number to the Rule 60(b) Motion (ECF
No. 23). The Court has not received authorization from the Fourth Circuit to file a successive

§ 2254 petition. Therefore, the action will be DISMISSED for want ofjurisdiction. The Court
will DENY a certificate of appealability.
An appropriate Final Order will accompany this Memorandum Opinion.

Isl

James R. Spencer
Date:

Richmond, Virginia

Senior U. S. District Judge