White v. United States Of America

Filing 2

OPINION. Signed by Judge James P. Jones on 1/25/06. (Callahan, Sharon)

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White v. United States Of America Doc. 2 Not Intended for Publication IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ROANOKE DIVISION SHARON WHITE, Petitioner, v. UNITED STATES OF AMERICA, Respondent. Sharon White, pro se ) ) ) ) ) ) ) ) ) Case No. 7:06CV00051 OPINION By: James P. Jones Chief United States District Judge Petitioner Sharon White, a federal inmate, filed a pleading styled as a "Motion for Relief from Judgment of Denial of Motion Pursuant to 28 U.S.C. 2255 Pursuant to Rule 60(b)(5)." Based on the nature of White's claims, I must construe the pleading as a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C.A. 2255 (West Supp. 2005). Because I find that White's current motion is successive, I must summarily dismiss this 2255 motion. Paragraph 8 of 2255 prohibits this court from considering a second or successive 2255 motion unless the petitioner produces specific certification from the United States Court of Appeals for the Fourth Circuit. A motion under Fed. R. Civ. P. 60(b) to revisit a federal habeas court's denial on the merits of a 2255 Dockets.Justia.com motion should be dismissed as a successive habeas petition so as to prevent petitioners from using such a motion to circumvent the rule against successive petitions. See Gonzales v. Crosby, 125 S. Ct. 2641, 2649 (2005) (citing Calderon v. Thompson, 523 U.S. 538, 553 (1998)). In the instant motion, White requests re-sentencing based on the United States Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005). White's Booker arguments are precisely the type of argument under Rule 60(b) that must be construed as a successive 2255 motion, pursuant to Gonzales. Id. The court will not allow White to circumvent the successive petition bar to raise yet another attack on the criminal sentence by styling the pleading as a Rule 60(b) motion in a longclosed case. White previously filed a 2255 motion, Civil Action No. 7:01-CV-00796. White's current 2255 motion, like the previous one, challenges the validity of White's conviction and/or sentence; thus, it is a successive motion. As the petitioner offers no indication that White has obtained certification from the court of appeals to file a second or successive 2255 motion, I must dismiss the current action without prejudice.1 A separate Final Order will be entered herewith. In addition, petitioner's claims under 2255 fail for two alternative reasons. All o f White's claims and the timeliness of the current motion rely on Booker. The United States C o u rt of Appeals for the Fourth Circuit has held, however, that Booker does not apply -2- 1 ENTER: January 25, 2006 /s/ JAMES P. JONES Chief United States District Judge retroactively to cases on collateral review. United States v. Morris, 429 F.3d 65 (4th Cir. 2 0 0 5 ). See also United States v. Cruz, 423 F.3d 1119, 1121 (9th Cir. 2005) (citing other c a se s holding Booker not to be retroactive). White's conviction and sentence became final o n or about January 11, 2001, upon expiration of the opportunity to submit a petition for a w rit of certiorari to the United States Supreme Court. See Clay v. United States, 537 U.S. 5 2 2 , 525 (2003). Since White's conviction became final prior to the decision in Booker, B o o k e r does not apply retroactively to this 2255 motion for collateral review. In the a lte rn a tiv e , Booker does not render the present motion timely under 2255 para. 6(3), and it is clearly untimely under 2255 para. 6(1). -3-

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