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