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Yarborough v. United States

United States District Court, D. South Carolina, Anderson/Greenwood Division

July 9, 2014

Jessie Yarborough, Petitioner,
United States of America, Respondent.


G. ROSS ANDERSON, Jr., Senior District Judge.

This matter comes before this Court upon Petitioner Jessie Yarborough's ("Petitioner's") pro se "Motion for Review of Offen[s]e Conduct Reconsideration" and "Request for 2D1 Reduction." ECF No. 224. In the instant motion, Petitioner asks this Court to reconsider its April 30, 2014 Order, requests a "2D1 reduction" and "that this case be reviewed, " and asserts claims of ineffective assistance of counsel during his original proceedings. Id.

Petitioner brings this motion pro se. District courts are required to liberally construe pleadings filed by a pro se litigant to allow for the development of a potentially meritorious claim. See Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. See Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978).

First, Petitioner asks this Court to reconsider its April 30, 2014 Order, dismissing without prejudice his challenge to the Bureau of Prisons' denial of RDAP credits so that he may re-file a § 2241 proceeding in the district of his confinement, and dismissing as a successive § 2255 petition his challenge to his 60 month consecutive sentence. After a review of Petitioner's original motion, this Court is confident that despite the requisite liberal standard, none of Petitioner's claims were unjustly dismissed. Petitioner has not presented this Court with any arguments that would compel this Court to alter or amend its prior decision.

Next, liberally construing Petitioner's motion, this Court finds that Petitioner appears to be asking for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) as a result of an amendment to U.S.S.G. § 2D1.1. Under Section 3582(c)(2) of Title 18 of the United States Code, a court may modify a previously imposed sentence if the defendant's applicable sentencing range under the Guidelines has subsequently been lowered by the Sentencing Commission.[1] Where a defendant is serving a term of imprisonment, and the Guidelines range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines listed in § 1B1.10(c), a reduction in the defendant's prison sentence is authorized under 18 U.S.C. § 3582(c)(2). U.S.S.G. § 1B1.10(a)(1). However, Petitioner has not provided this Court with an amendment to U.S.S.G. § 2D1.1 that is listed in § 1B1.10(c) that impacts his case. Because Petitioner has not shown a sufficient basis for modification of his sentence under 18 U.S.C. § 3582(c)(2), his claim is without merit.

Furthermore, inasmuch as Petitioner is asking this Court to correct his sentence due to the fact that "he is innocent of the crimes [he is] charged with" and because his "attorney was ineffective, " ECF No. 224 at 5, the Court re-characterizes this request as a motion under 28 U.S.C. § 2255.[2] The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") limits the number of § 2255 motions that petitioners are allowed to file. Under the AEDPA, an individual is not permitted to "file a second or successive... § 2255 motion to vacate sentence without first receiving permission to do so from the appropriate circuit court of appeals." In Re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997) (citations omitted). The court of appeals will only allow a second or successive § 2255 motion if the motion contains either "newly discovered evidence... or 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)(1)-(2). The district court lacks jurisdiction to consider a second or successive § 2255 motion without this pre-filing authorization. See 28 U.S.C. § 2244(b)(3)(A).

Here, Petitioner previously filed a § 2255 motion, which was dismissed by this Court. See ECF Nos. 122, 127, & 137. In addition, this Court construed part of Petitioner's "Motion for Review of Offen[s]e Conduct" as a § 2255 motion, and dismissed his request as successive. See ECF Nos. 221 & 222. In the instant motion, Petitioner does not allege that he has obtained an order of certification from the Fourth Circuit authorizing this Court to consider another petition brought pursuant to 28 U.S.C. § 2255. Therefore, the instant motion must be dismissed, as this Court lacks jurisdiction to hear a successive § 2255 motion for relief without permission from the Fourth Circuit.

Accordingly, after reviewing Petitioner's motion and the record, this Court finds that Petitioner is not entitled to relief. This Court declines to issue a certificate of appealability in this matter.[3]

IT IS THEREFORE ORDERED that Petitioner's motion for reconsideration is DENIED, Petitioner's motion for a sentence reduction is DENIED, and that the remainder of Petitioner's motion is DISMISSED without prejudice.


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