Lowe v. Clarke

Filing 2

MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 03/23/2018. Copy mailed to Petitioner. (tjoh, )

p
IN THE UNITED STATES DISTRICT COURT

"*

n

J

Lz3

1

MAR 23 20»

\j

FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

CLERK, U.S. DISTRICT COURT
RICHMOND, VA

MARK LOWE,

Petitioner,
Civil Action No. 3:18CV155-HEH

V.

HAROLD CLARKE,

Respondent.
MEMORANDUM OPINION

(Dismissing Successive § 2254 Petition)

Petitioner, a Virginia prisoner proceeding pro se, submitted a Petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, challenging his convictions in the Circuit

Court for the County of Chesterfield of attempted murder, two counts of use of a firearm
in the commission of a felony, abduction, and discharge of a firearm at an occupied

building. See Lowe v. Commonwealth of Virginia, No. 3:17CV292, 2018 WL 507076, at
*1 (E.D. Va. Jan. 22, 2018). By Memorandum Opinion and Order entered on January 22,
2018, the Court denied that petition. Id. at *5. On or about March 5, 2018, {see ECF
No. 1, at 18) Petitioner sent to the Court a document which he titled, "Motion to Vacate
and Void the Criminal Conviction." ("Motion to Vacate," ECF No. 1.) In the Motion to

Vacate, Petitioner invokes this Court's jurisdiction under Federal Rule of Civil Procedure
60(b) and 60(d), Petitioner once again challenges his convictions in the Circuit Court for

the County of Chesterfield. For the reasons set forth below, the Motion to Vacate will be
dismissed as a successive, unauthorized § 2254 petition.

The Antiterrorism and Effective Death Penalty Act of 1996 restricted the

jurisdiction of the district courts to hear second or successive applications for federal
habeas corpus relief by prisoners attacking the validity of their convictions and sentences

by establishing a "gatekeeping mechanism." Felker v. Turpin, 518 U.S. 651, 657 (1996)

(internal 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).
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 not presented in a
prior application.'" United States v. Winestock, 340 F.3d 200, 206 (4th Cir. 2003)
(quoting Calderon v. Thompson, 523 U.S. 538, 553 (1998)). Additionally, the Fourth
Circuit has provided the following guidance in distinguishing between a proper Rule
60(b) motion and an improper successive § 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, Petitioner's Motion to Vacate challenges his
Chesterfield County convictions, rather than any defects in his federal habeas

proceedings. See Gonzalez v. Crosby, 545 U.S. 524, 530-32 (2005) (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 a successive § 2254 petition. Cf. United States v.
Merica, Nos. 5:04CR00015, 5:11CV80375, 2011 WL 6325881, at *1 (W.D. Va. Dec. 16,

2011) (construing action under Fed. R. Civ. P. 60(d) as a successive § 2255 motion). The
Court has not received authorization from the Fourth Circuit to file the present § 2254

petition. Therefore, the action will be DISMISSED WITHOUT PREJUDICE for want of
jurisdiction. The Court will deny a certificate of appealability.
An appropriate Final Order will accompany this Memorandum Opinion.

Is/

Date:
Richmond, Virginia

Henry E. Hudson
United States District Judge