Shelton v. Commonwealth of Virginia
Filing
18
MEMORANDUM OPINION. Read Opinion for complete details. Signed by District Judge Robert E. Payne on 10/05/2016. Copy mailed to Petitioner.(ccol, )
IN THE
UNITED
STATES DISTRICT COURT
II
FOR THE EASTERN DISTRICT OF VIRGINIA
L
Richmond Division
SHERMAN L.
SHELTON,
OCT - 6 »
JR.,
CLERK. U.S. DiSTRiCT C0UR1
Petitioner,
RICHMOND. VA
Civil Action No.
V.
3:15CV533
COMMONWEALTH OF VIRGINIA,
Respondent.
MEMORANDUM OPINION
Petitioner,
Sherman
proceeding pro se,
VACATE,
THAT
(hereinafter,
Court
for
L.
Shelton,
Jr.,
a
Virginia
filed this action which he titled,
SET ASIDE,
CONVICTION
AND
IS
"Motion
evaluation
DECLARE
VOID
AB
NULL AND
INITIO.
to Vacate."}.
pursuant
to
THE
"MOTION TO
JUDGMENT
'INDEPENDENT
The
28
VOID,
matter
U.S.C.
is
inmate
OF
ACTION'"
before
§ 1915(e)(2)
the
and
Rule 4 of the Rules Governing Section 2254 Cases in the United
States
District
il
Courts.^
As
explained below,
the
Motion
^ According to Rule 4 of the Rules Governing Section 2254
cases:
The clerk must promptly forward the petition to a
judge under the court's assignment procedure, and the
judge must promptly examine it.
If it plainly appears
from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district
court, the judge must dismiss the petition and direct
the clerk to notify the petitioner.
Rules Governing § 2254 Cases in U.S. District Courts, Rule 4.
to
Vacate
will
be
dismissed
because
it
is
a
successive,
unauthorized § 2254 petition.
Shelton was
of
Spotsylvania
building.
convicted in the
for
robbery and threatening
Shelton
No. 3:08CV70,
v.
Dir.
2008 WL 4361051,
On September 24,
2008,
of
at *1
(E.D.
above
In his present Motion to Vacate,
for
the
County
to burn or bomb a
Virginia
this Court denied a
by Shelton challenging the
challenge his
Circuit Court
Dep't
Va.
of
Sept.
Corr.,
24,
2008),
§ 2254 petition filed
convictions.
Id.
at
*1,
*7.
Shelton once again attempts to
Spotsylvania convictions,
this
time
invoking the
Court's jurisdiction under Federal Rule of Civil Procedure 60(b)
& (d) .
(Mot. Vacate 2 .)
The Antiterrorism and Effective Death Penalty Act
restricted
the
second
successive
or
jurisdiction
of
the
applications
district
for
courts
federal
habeas
of
to
1996
hear
corpus
relief by prisoners attacking the validity of their convictions
and
sentences
Felker
v.
by
Turpin,
"[b]efore a
establishing
518
U.S.
a
651,
"'gatekeeping'
657
(1996).
mechanism."
Specifically,
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
§ 2244(b)(3)(A).
to
consider
the
application."
28
U.S.C.
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
United States v.
(quoting
Calderon
Additionally,
the
not presented in a
Winestock,
v.
340 F.3d 200,
Thompson,
Fourth
523
Circuit
has
guidance in distinguishing between a
and an improper successive
§
prior application. '"
206
U.S.
(4th Cir.
538,
provided
553
the
2003)
{1998)).
following
proper Rule 60 (b}
motion
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,
Shel ton' s
Motion
to
Vacate raises challenges to his Spotsylvania convictions, rather
than any defects
argues
that
in his
numerous
federal
errors
habeas proceedings.
occurred during his
See Gonzalez v. Crosby, 545 U.S. 524, 530-32
3
(2005}
state
Shelton
trial.
(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)
Accordingly, the Court
must treat the Motion to Vacate as successive § 2254 petition.
United States v. Merica, Nos. 5:04CR00015, 5;11CV80375, 2011 WL
6325881,
action
at *1
under
motion).
(W.D. Va.
Fed.
The
R.
Court
Dec. 16,
Civ.
has
P.
not
2011)
60(d)
received
as
(treating independent
a
successive
authorization
Fourth Circuit to file the present § 2254 petition.
the action will be dismissed for want of
§
from
2255
the
Therefore,
jurisdiction.
The
Court denies a certificate of appealability.
An appropriate Final Order will accompany this Memorandum
Opinion.
Date:
f) ^ t
<•
Richmond, Virginia
L,
Mt
Robert t&iited States District Judge
Senior E. Payne
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