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Dewitt v. United States

United States District Court, D. South Carolina, Florence Division

June 30, 2015

Irby Gene Dewitt, PETITIONER
v.
United States of America, RESPONDENT Crim No. 4:04-cr-00795-TLW

ORDER

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 Irby Gene Dewitt. For the reasons stated below, the Court dismisses the petition.

I. Factual and Procedural History

Petitioner pled guilty to Hobbs Act Robbery (Count 1) and possessing and brandishing a firearm during a crime of violence (Count 2), and he was sentenced to a total sentence of 312 months, consisting of 240 months on Count 1 and 312 months on Count 2, with the terms to run concurrently. He did not file a direct appeal.

On October 1, 2007, Petitioner filed his first § 2255 petition.[1] After briefing, the Court dismissed the petition as untimely. ECF No. 151. He filed a direct appeal, which was dismissed by the Fourth Circuit. United States v. Dewitt, 399 F. App’x 810 (4th Cir. 2010).

On January 21, 2011, Petitioner filed a second § 2255 petition. ECF No. 178. After briefing, the Court also dismissed this petition as untimely. ECF No. 199. He filed a direct appeal, which was dismissed by the Fourth Circuit. United States v. Dewitt, 501 F. App’x 309 (4th Cir. 2012).

Petitioner has also filed several other motions attacking his sentence. ECF Nos. 207, 211, 221. These motions have all been denied. ECF Nos. 209, 213, 222. His appeals from these orders have been dismissed by the Fourth Circuit. United States v. Dewitt, 585 F. App’x 83 (4th Cir. 2014); United States v. Dewitt, 544 F. App’x 179 (4th Cir. 2013).

Undeterred, Petitioner filed the instant § 2255 petition on or about October 29, 2014, [2]asserting that the Court erred in sentencing him to concurrent sentences for his two counts of conviction. 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, as untimely, and that he is not entitled to relief on the merits. He then filed a response to the Government’s motion.

This matter is now ripe for decision.

II. Discussion

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, that ...

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