United States District Court, District of South Carolina, Florence Division
Terry L. Wooten Chief United States District Judge
This matter comes before the Court for consideration of the pro se motion to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255 filed by Petitioner Jerrick Lamont Rorie. For the reasons stated below, the Court dismisses the petition.
I. Factual and Procedural History
Petitioner was indicted for various drug offenses. He pled guilty to the first count of the Indictment, which charged him with Conspiracy to Distribute 50 Grams or More of Cocaine Base and 5 Kilograms or More of Cocaine. As part of the plea agreement, the parties agreed that the Government would only seek enhancement of his sentence under 21 U.S.C. § 851 and 18 U.S.C. § 841 based on one of his prior felony drug convictions, which had the effect of reducing his mandatory minimum sentence to 20 years from life. On October 27, 2009, the Court sentenced him to 264 months incarceration, followed by a 10-year term of supervised release.Judgment was entered on November 16, 2009. He did not file a direct appeal.
On June 21, 2010, he filed a § 2255 petition, asserting generally that he was entitled to relief based on ineffective assistance of counsel. On November 22, 2010, the Court granted the Government’s motion for summary judgment and dismissed the petition with prejudice. He appealed the dismissal of the petition, but because his notice of appeal was not timely filed, the Fourth Circuit dismissed his appeal. United States v. Rorie, 515 F. App’x 221, 222 (4th Cir. 2013).
On or about May 29, 2013, Petitioner filed this § 2255 petition, asserting that, under United States v. Simmons, 649 F.3d 237 (4th Cir. 2011), his sentence should not have been enhanced pursuant to 21 U.S.C. § 851 and 18 U.S.C. § 841. However, he has not received permission from the Fourth Circuit under 28 U.S.C. § 2244 to file this second petition.
The Court does not have jurisdiction to consider Petitioner’s motion. He has filed a previous § 2255 motion and has not obtained permission from the Fourth Circuit to file a second or successive motion. 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).
Because Petitioner has filed a previous § 2255 motion, the present motion is second or successive. He has not received an order from the Fourth Circuit authorizing a second or successive petition. Consequently, the Court is without jurisdiction to consider it. See In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997) (noting that the petitioner must seek permission from the circuit court to file a second or successive motion under § 2255); Burgess v. Warden, No. 2:11-1621-CMC, 2011 WL 4345430, at *2 (D.S.C. Sept. 15, 2011) (“As Petitioner is no doubt well aware, prior to filing a second or successive motion under § 2255, he must obtain certification by a panel of the Fourth Circuit Court of Appeals allowing him to file a second or successive motion. As provided in 28 U.S.C. § 2244, ‘[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). This he has not done.”).
This is Petitioner’s second § 2255 motion. He must obtain authorization from the Fourth Circuit to file a second or successive § 2255 motion. As he has not obtained this ...