Dixon v. United States of America

Filing 905

MEMORANDUM OPINION AND ORDER adopting 895 Proposed Findings and Recommendations; denying 889 MOTION to Vacate, Set Aside or Correct Sentence (2255) by Richard L. Dixon; directing that this action is dismissed. Signed by Judge John T. Copenhaver, Jr. on 12/1/2017. (cc: attys; any unrepresented party, Mag. Judge) (tmr)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON

RICHARD L. DIXON,
Movant,
v.

CIVIL ACTION NO: 2:16-cv-00780
(Criminal No. 2:96-cr-00191)

UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM OPINION AND ORDER
Pending before the court is movant’s motion under 28
U.S.C. § 2255 to vacate, set aside or correct sentence by a
person in federal custody.

Magistrate Judge Omar J. Aboulhosn

submitted his Proposed Findings and Recommendation (“PF&R”) on
October 12, 2017, recommending that the motion be denied.
Movant filed objections to the PF&R on October 27, 2017, and
November 14, 2017.

I.

Factual Background

The facts of the case are summarized in the PF&R and
so only a brief recapitulation of those facts, relevant to the
disposition, is provided.

In 1997, movant was convicted of

several offenses, related to his role in a drug distribution
conspiracy.

His convictions and sentences were affirmed on

appeal by the United States Court of Appeals for the Fourth
1

Circuit on October 22, 1998, except for a conspiracy charge
dismissed on double jeopardy grounds.

United States v. Taylor,

165 F.3d 22 (4th Cir. 1998).
In November 1999, he filed his first Section 2255
motion, which was amended on January 6, 2000 and then denied by
this court, by the sentencing judge, Hon. Elizabeth V. Hallanan,
on September 6, 2000.

On June 7, 2001, the Fourth Circuit

denied movant’s certificate of appealability and dismissed his
appeal.
2001).

United States v. Dixon, 11 Fed. Appx. 296 (4th Cir.
On December 6, 2005, the Fourth Circuit denied movant’s

request to file a second Section 2255 application.

In Re:

Richard L. Dixon, Case No. 05-497 (4th Cir. 2005), Document No.
7.
On April 10, 2015, the court reduced movant’s life
sentence to 328 months of imprisonment, based on a general
reduction in the sentencing guidelines under 18 U.S.C. §
3582(c)(2).

In the pending motion, movant argues that his

original sentence was improperly enhanced by two levels for
obstruction of justice, based on untried and acquitted conduct.
He objected to the enhancement at the time of sentencing but did
not raise the issue either on appeal or in his first Section
2255 motion.

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II.

Discussion

While movant makes several objections, the threshold
question identified in the PF&R is whether his motion is
admissible at all as a second or successive motion.

The

Antiterrorism and Effective Death Penalty Act of 1996 mandates
that if a defendant has already filed one motion for collateral
relief to vacate, set aside, or correct a sentence, a
second or successive motion must be
certified as provided in § 2244 by a panel of the
appropriate court of appeals to contain:
(1) newly discovered evidence that, if
proven and viewed in light of the evidence as a
whole, would be sufficient to establish by clear
and
convincing
evidence
that
no
reasonable
factfinder would have found the movant guilty of
the offense; or
(2) a new rule of constitutional law,
made retroactive to cases on collateral review by
the Supreme Court, that was previously unavailable.
28 U.S.C. § 2255(h).
Neither newly discovered evidence nor a new rule of
constitutional law is presented by movant.
Magistrate Judge Aboulhosn aptly noted that this
motion cannot be considered because it is “second or successive”
within the meaning of the statute, it has not been certified by
the Fourth Circuit, and none of the movant’s suggested
exceptions sanctioned by the United States Supreme Court in

3

DOES 1 THROUGH 10, inclusive,
Defendants.
ORDER AND NOTICE
Panetti, Martinez and to L.R. Civ. P.1 16.1, it is ORDERED that the
In doing so, the
Pursuant Arizona apply.
following dates are hereby fixed as the time by or on which
magistrate events dealt occur:
certain judge must thoroughly and accurately with the same
01/28/2016
matters that are Motions under F.R. Civ. P. 12(b), together with
now presented as objections by the movant.
supporting briefs, memoranda, affidavits, or other
such matter in not be thereof. (All motions
Consequently, these issues need support further addressed.
unsupported by memoranda will be denied without
prejudice pursuant to L.R. Civ. P. 7.1 (a)).
Accordingly, the objections are overruled, the
02/08/2016
Last day for Rule 26(f) meeting.
Proposed Findings and Recommendation is adopted, and the motion
02/15/2016
Last day to file Report of Parties= Planning
Meeting. See The Civ. P. 16.1.
under Section 2255 is denied. L.R. court, accordingly, ORDERS
02/22/2016
that this action Scheduling conference at 4:30 p.m. at the Robert C.
be, and it hereby is, dismissed from the
Byrd United States Courthouse in Charleston, before
the undersigned, unless canceled. Lead counsel
docket.
directed to appear.
The
02/29/2016 Clerk is of scheduling transmit this memorandum
Entry requested to order.
03/08/2016
Last day to serve F.R. Civ. P 26(a)(1) United
opinion and order to the movant, counsel of record, and disclosures.
States Magistrate Judge Omar J. Aboulhosn.
The Clerk is requested to transmit this Order and
Notice to all counsel of record and to any unrepresented
parties.
DATED: January 5, 1, 2017
DATED: December 2016
John T. Copenhaver, Jr.
United States District Judge

1

Panetti v. Quarterman, 551 U.S. 930, 942–47 (2007); Martinez v. Ryan, 566 U.S. 1 (2012); Arizona v. Fulminante,
499 U.S. 279, 310 (1991).

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