Smith v. United States Of America

Filing 2

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

Smith 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

DUDLEY SMITH, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

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Case No. 7:06CV00052 OPINION By: James P. Jones Chief United States District Judge

Dudley Smith, pro se Petitioner Dudley Smith, 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 Smith'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 Smith'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

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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, Smith requests re-sentencing based on the United States Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005). Smith'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 Smith 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. Smith previously filed a § 2255 motion, Civil Action No. 7:01-CV-00796. Smith's current § 2255 motion, like the previous one, challenges the validity of Smith's conviction and/or sentence; thus, it is a successive motion. As Smith offers no indication that he 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 Smith'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-

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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). Smith'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 Smith'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-