Hicks v. Commonwealth of Virginia et al
Filing
9
MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 05/10/2017. Copy mailed to Petitioner. (tjoh, )
IN THE UNITED
MAY I I 201?
STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Ridiniond Division
Kicnmona jjivibioh
OZELIA HICKS,
CLERK, RICHMOND. VA court
U.S. district
JR.,
Petitioner,
V.
Civil Action No.
COMMONWEALTH OF VIRGINIA, ^
3:16CV946
al.,
Respondents.
MEMORANDUM OPINION
Petitioner Ozelia Hicks,
Court
of
Chesterfield
pretenses
and
See Hicks v.
Va.
Mar.
3,
March 3,
was
2016).
2016,
County
sentenced
Clarke,
Jr.
No.
was
for
to
3:15CV123,
1,
entitled
"MOTION
far
from
money
of
by
2016,
2016 WL 901265,
at *1
(E.D.
By Memorandum Opinion and Order entered on
the
Court
FOR NEW
60(b)
lucid
false
incarceration.
this Court denied Hicks's petition for a
December
("Rule
obtaining
seven years
habeas corpus pursuant to 28 U.S.C.
60(b)"
convicted in the Circuit
Rule
received
TRIAL
Motion,"
60(b)
§ 2254.
ECF No.
Motion,
See id. at *9.
from
PURSUANT
TO
writ of
Hicks
CODE
§
1).
submission
8.01-428
In his
Hicks
a
clearly
On
Rule
rambling and
continues
to
attack the sufficiency of the evidence and other errors in the
criminal
e.g.,
Motion,
proceeding
id.
as
at
2.)
leading
to
Despite
labeling
explained below,
his
Hicks's
state
his
Rule
conviction.
motion
60(b)
treated as a successive, unauthorized 28 U.S.C.
a
Rule
(See,
60(b)
Motion must
be
§ 2254 petition.
The Antiterrorism and Effective Death
restricted
the
second
successive
or
jurisdiction
of
the
applications
Penalty Act
district
for
of
to
courts
federal
1996
hear
habeas
corpus
relief by prisoners attacking the validity of their convictions
and sentences by establishing a "gatekeeping mechanism."
V.
Turpin,
518
omitted).
U.S.
651,
657
Specifically,
(1996)
(internal
[b] efore
a
Felker
quotation marks
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
has held
"that district courts must
for
the Fourth Circuit
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
United States
(quoting
v.
Calderon
Additionally,
guidance
claims
the
not
presented
Winestock,
v.
in
340
F.3d
Thompson,
523
Fourth
Circuit
200,
U.S.
has
in distinguishing between a
a
prior
206
application.'"
(4th Cir.
538,
provided
553
the
proper Rule
2003)
(1998)).
following
60(b)
motion
and an improper successive § 2255 motion or habeas petition;
[A]
motion
directly
conviction or
sentence
successive
application,
remedy
for
some
defect
attacking
the
prisoner's
will
usually
amount
to
a
while
a
motion
seeking a
in
the
collateral
review
process will
generally be deemed a
reconsider.
Thus,
a
proper motion to
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
raises
(citations omitted).
challenges
any defects
to
in his
his
Here, Hicks's Rule 60(b) Motion
Chesterfield conviction,
federal
habeas
rather
proceedings.
While
than
Hicks
cites several Federal Rules of Civil Procedure and mentions the
Magistrate Judge's name in his Rule 60(b) Motion to suggest that
the Court erred in dismissing his first
§ 2254 petition.
clearly intends to attack his conviction and sentence.^
further
indicator
conviction.
that
Hicks
intends
to
attack
his
Hicks
As a
state
Hicks submits portions of the trial transcript that
he believes illustrate his points about errors in his criminal
proceedings.
his
federal
(ECF No. 1-1.)
habeas
Instead of demonstrating defects in
proceedings.
Hicks
enumerates
purported
^ Hicks's subsequent filings in this action also demonstrate
his
true
intent
to
attack
his
state
conviction
and
sentence.
For example, in his Motion to Expedite Appeal Bond as a Matter
of Law, Hicks challenges his remaining state sentence, asks this
Court to alter the sentence imposed by the state court (see ECF
No. 2, at 3-4), and once again attempts to attack the sufficiency
of the evidence supporting his conviction (id. at 6-11).
In his
Motion for Writ of Mandamus Appeal Bond, he claims that trial
and appellate counsel erred (ECF No. 5, at 4), the prosecutor
engaged in misconduct (id. at 5), and insufficient evidence
existed to support his conviction of larceny by false pretenses
(id.
at 6).
errors
that occurred during his
Crosby,
545 U.S.
524,
530-32
state
(2005)
trial.
See Gonzalez v.
(construing a motion as a
successive habeas corpus application if it seeks vindication of
a claim for relief from the criminal judgment,
the motion is labeled)Accordingly,
Rule
has
60(b)
not
Motion as
a
successive
§
received authorization from
the present
§ 2254
petition.
regardless of how
the Court must treat the
2254
the
petition.
The
Fourth Circuit
Therefore,
the
to
Court
file
action will be
dismissed for want of jurisdiction.
Hicks's Motion to Expedite Appeal Bond as a Matter of Law
(ECF
No.
2) ,
Motion
for
Writ
of
Mandamus
Appeal
Bond
(ECF
No. 5), Motion to Correct the Record (ECF No. 6), and Motion for
Summary Judgment (ECF No. 7) will be denied.^
An appeal may not be taken from the final order in a § 2254
proceeding unless a judge issues a certificate of appealability.
28 U.S.C.
§ 2253(c)(1)(A).
A certificate of appealability will
not issue unless a prisoner makes "a substantial showing of the
denial
This
could
of
a
constitutional
requirement
debate
is
whether
right."
satisfied
(or,
28
only
for
when
that
U.S.C.
§
2253(c)(2).
''reasonable
matter,
agree
jurists
that)
the
petition should have been resolved in a different manner or that
^ Hicks
identifies no discernable
defect
in
the
collateral
review process despite his frequent inclusion of the Magistrate
Judge's name.
^ All of these documents continue to attack his underlying
conviction and sentence no matter the
4
title.
the issues presented were
proceed further.'"
'adequate to deserve encouragement to
Slack v. McDaniel, 529 U.S. 473, 484
(quoting Barefoot v. Estelle, 463 U.S.
Because Hicks fails
880,
893 & n.4
to satisfy this standard,
a
(2000)
(1983)).
certificate of
appealability will be denied.
The
Clerk
is
directed
to
send
a
copy
of
the
Memorandum
Opinion to Hicks.
It
is
so ORDERED.
^
Date:
Richmond, Virginia
Robert E. Payne
/s/
Senior United States District Judge
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