United States District Court, D. South Carolina, Florence Division
Terry L. Wooten Chief United States District Judge
This matter comes before the Court for consideration of the pro se petition to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255 filed by Petitioner Warren Mitchell Cooper. For the reasons stated below, the Court dismisses the petition.
I. Factual and Procedural History
Petitioner pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and was sentenced to 190 months imprisonment on June 20, 2003. He was sentenced as an armed career offender under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). His ACCA predicate offenses consisted of one conviction for assault and battery of a high and aggravated nature (“ABHAN”) and two convictions for failure to stop for a blue light.
Petitioner filed a direct appeal, and his counsel submitted an Anders brief raising the issues of whether the magistrate judge complied with Rule 11 before entering Petitioner’s guilty plea and whether this Court erred in using his blue light convictions to enhance his sentence under the ACCA. Petitioner did not file a pro se supplemental brief. The Fourth Circuit concluded that there was no merit to either issue and affirmed. United States v. Cooper, 102 F. App’x 300, 301 (4th Cir. 2004).
On September 27, 2005, Petitioner filed his first § 2255 petition. After briefing, the Court denied the petition. He did not appeal.
On August 19, 2010, he filed with the Fourth Circuit a request for authorization to file a second or successive § 2255 petition, which was denied. No. 10-245, ECF No. 4 (4th Cir. Sept. 1, 2010).
On September 15, 2010, he filed a § 2241 petition attacking his sentence. This petition was denied without issuance and service of process because the claim he asserted-that, based on United States v. Rivers, 595 F.3d 558 (4th Cir. 2010), his blue light convictions should not have been used to enhance his sentence under the ACCA-was not properly made in a § 2241 petition. Cooper v. Warden, No. 4:10-2402-JFA-TER, 2011 WL 1113544, at *2 (D.S.C. Mar. 28, 2011).
On May 6, 2011, he filed a motion to vacate his judgment pursuant to Rule 60(b)(4) of the Federal Rules of Civil Procedure. ECF No. 53. That motion was also denied. ECF No. 55.
Undeterred, he filed the instant § 2255 petition on July 22, 2013, asserting that he is “actually innocent” of the ACCA enhancement based on the Rivers decision and that his ACCA enhancement violated his Sixth Amendment rights under Alleyne v. United States, 133 S.Ct. 2151 (2013). He has not received permission from the Fourth Circuit under 28 U.S.C. § 2244 to file this second or successive petition. The Government filed a motion to dismiss, arguing that this § 2255 petition should be dismissed as second or successive and that he is not entitled to relief on the merits. He then filed a response to the Government’s motion.
The Court does not have jurisdiction to consider Petitioner’s petition. He has filed a previous § 2255 petition and has not obtained permission from the Fourth Circuit to file a second or successive petition. A second or successive petition 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, ...