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Dais v. United States

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

January 19, 2016

Norman Tyrone Dais, PETITIONER
v.
United States of America, RESPONDENT C/A No. 4:15-cv-05021-TLW

ORDER

Terry L. Wooten Chief United States District Judge

This matter comes before the Court for consideration of the document entitled “Vacate Sentence ‘Letter’” filed by Petitioner Norman Tyrone Dais. Because this document challenges his underlying sentence, the Court construes it as a petition for relief pursuant to pursuant to 28 U.S.C. § 2255. 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 and ammunition in violation of 18 U.S.C. § 922(g)(1) and was sentenced to 294 months imprisonment on August 31, 2004. He was sentenced as an armed career offender under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e).[1] His ACCA predicate offenses consisted of five burglary convictions.[2]

Petitioner filed a direct appeal, and his counsel submitted an Anders brief. Petitioner filed a pro se supplemental brief in which he raised several issues, including the use of his burglary convictions to enhance his sentence under the ACCA. The Fourth Circuit affirmed. United States v. Dais, 178 F. App’x 253, 256-57 (4th Cir. 2006).

On October 30, 2006, Petitioner filed a § 2255 petition. ECF No. 67. After he filed numerous motions and letters with the Court, the Court appointed counsel for him and held an evidentiary hearing on March 3, 2009. At the hearing, he withdrew with prejudice his § 2255 petition. He has since filed with the Fourth Circuit at least three requests for authorization to file a second or successive § 2255 petition, all of which have been denied. No. 12-168, ECF No. 4 (4th Cir. Apr. 20, 2012); No. 11-117, ECF No. 6 (4th Cir. Feb. 25, 2011); No. 09-214, ECF No. 4 (4th Cir. July 15, 2009).

On September 10, 2013, Petitioner filed another § 2255 petition, asserting that the Court improperly used his burglary convictions to enhance his sentence under the ACCA and improperly enhanced his sentence based on his use of a firearm in connection with another crime. ECF No. 234. He then filed a motion to amend his petition to assert additional arguments regarding his burglary convictions. ECF No. 238. The Government then filed a response in opposition and a motion to dismiss the petition, asserting that it should be dismissed as second or successive, as procedurally barred, and on the merits. ECF Nos. 242, 244. He then filed a response in opposition. ECF No. 250.

The Court granted the motion to amend, directed the clerk to file the original § 2255 petition and motion to amend together as a separate docket entry, and directed the Government to respond to the amended § 2255 petition. ECF Nos. 251, 253. The Government then filed a new motion requesting dismissal or summary judgment. ECF No. 257. Petitioner did not file a response to the Government’s motion, though he did file a motion requesting reconsideration of the dismissal of his prior § 2255 petition. ECF No. 265. That motion for reconsideration was denied in a separate order. ECF No. 269. The Court then denied his § 2255 petition as second or successive. ECF No. 271.

Petitioner filed the instant § 2255 petition on or about December 18, 2015, [3] asserting that he is entitled to relief pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015) and United States v. McLeod, __F.3d __, 2015 WL 6575673 (4th Cir. 2015). He has not received permission from the Fourth Circuit under 28 U.S.C. § 2244 to file this successive petition.

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, ...

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