Hicks v. Clements

Filing 6

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

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