Hicks v. Clements

Filing 6

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 05/10/2017. Copy mailed to Petitioner. (tjoh, )

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11 IN THE UNITED FOR THE STATES DISTRICT EASTERN DISTRICT COURT OF VIRGINIA CLERK, U.S. DISTRICT COURT RICHMOND. VA Richmond Division OZELIA HICKS, JR., Petitioner, Civil Action No. V. DAVID S. 3:17CV96 CLEMENTS, Respondent. MEMORANDUM OPINION Petitioner, Court of Ozelia Hicks, Chesterfield Jr. was convicted in the Circuit County for obtaining money pretenses and was sentenced to seven years of See Hicks v. Va. Mar. 3, Clarke, 2016) . No. 3:15CV123, by false incarceration. 2016 WL 901265, at *1 (E.D. By Memorandum Opinion and Order entered on March 3, 2016, this Court denied Hicks's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. February 2, 2017, the Court received from Hicks a entitled ^'NOTICE OF APPEAL," The Antiterrorism and Effective restricted the second successive On submission that once again challenges alleged defects in his state criminal proceedings. or See id. at *9. jurisdiction of the applications (ECF No. 1.) Death Penalty Act district for federal courts habeas of 1996 to hear corpus relief by prisoners attacking the validity of their convictions and sentences by establishing a ^'gatekeeping mechanism." V. Turpin, 518 U.S. 651, 657 (1996) (internal Felker 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). jurisdiction to entertain a second 28 U.S.C. Hicks absent authorization from Appeals for the Fourth Circuit. the This Court lacks § 2254 motion from United States See 28 U.S.C. Court of § 2244(b) (3) (A) . Hicks cannot avoid that result by styling his present motion as a "NOTICE 855, 857 OF APPEAL." (7th circumvent Cir. the 2004) of (4th Cir. audita quare impedit Card; the name controls." 97 F.3d 185, Hicks's conviction on . . makes Melton, 186-87 359 inmates petitions Winestock, habeas no difference. (7th Cir. "NOTICE squarely It is not simply by F.3d 200, arrest coram vobis, corpus, or an application for a F.3d may 340 coram nobis, capias, 359 F.3d at 857 current falls States, that successive prohibition, certiorari, . United "Call it a motion for a new trial, mandamus, querela, v. United States v. 2003) . judgment, Melton (emphasizing limitations inventive labeling); 207 See ejectment, Get-Out-of-Jailsubstance (citing Thurman v. that Gramley, 1996)). OF APPEAL" within the challenging ambit of his 28 state U.S.C. § 2254(a).^ See Smith v. 2015 WL 1401677, a motion 'seeks is ''a Gonzalez v. Crosby, obtained Appeals of regardless for a 'habeas 'claim' of the 545 U.S. authorization the Nos. (E.D. Va. Mar. successive vindication' judgment, not at *1 Virginia, Fourth 25, from Circuit 2015) corpus for of the to (explaining that from the 530-32 3;15CV182, application' relief title 524, 3:12CV148, the (quoting (2005))). file a it criminal motion" United if Hicks States has Court successive § of 2254 petition challenging his state convictions and this Court lacks jurisdiction to Accordingly, the jurisdiction. No. 3) entertain action the will present be § 2254 dismissed petition. for lack Hicks's Motion for Rehearing by Full Court of (ECF will be denied. An appeal may not be taken from the final order in a § 2254 proceeding unless a ("COA"). 28 judge issues a certificate of appealability 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 requirement debate is whether right." satisfied (or, for 28 only that U.S.C. when matter, § 2253(c)(2). "reasonable agree that) This jurists the could petition ^ Hicks once again argues that he experienced ineffective assistance of counsel during his criminal proceedings (Notice of Appeal 4-5 (as paginated by CM/ECF)) and continues to argue that insufficient evidence existed to support his conviction and sentence for obtaining money by false pretenses (id. at 7-8 (as paginated by CM/ECF)). should have been issues resolved presented were proceed further.'" law or evidence consideration in a 'adequate different to Slack v. McDaniel, (quoting Barefoot v. No in Estelle, suggests this manner deserve or that encouragement 529 U.S. 473, 484 463 U.S. 880, 893 & n.4 that Hicks is entitled to matter. A certificate of the to (2000) (1983)). further appealability will be denied. The Clerk is directed to send Hicks a copy of Memorandum Opinion. It is so ORDERED. /s/ ^ . Date: Robert E. Payne PlAOuC ( S e n i o r United States District Judge Richmond, Vii^inia this

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