United States District Court, D. South Carolina, Florence Division
Plaintiff, represented by Alfred William Walker Bethea, U.S.
WESTON HOUCK, District Judge.
matter is before the Court on the motions of Timothy Gadson
(the "defendant"). The first motion is to vacate
the defendant's sentence pursuant to 28 U.S.C. Â§ 2255 and
in the alternative Â§Â§ 2241 and 1651 ("Motion to
Vacate") (ECF No. 76). The defendant's second motion
is to dismiss the Motion to Vacate ("Motion to
Dismiss") (ECF No. 85). For the reasons set forth in
this Order, the defendant's motions are denied.
2005, the defendant filed a Section 2255 petition, which the
Court dismissed on the merits. Gadson v. United States, No.
4:05-cv-00957-CWH. The Court's Order was affirmed on
appeal. United States v. Gadson, 187 F.Appx. 262, 263 (4th
Cir. 2006) (per curiam). The United States Supreme Court
denied the defendant's petition for a writ of certiorari.
Gadson v. United States, 549 U.S. 1007 (2006).
March 2, 2016, the defendant, proceeding pro se, filed the
Motion to Vacate pursuant to 28 U.S.C. Â§ 2255 - and in the
alternative, Â§Â§ 2241 and 1651 - seeking to have the Court
resentence him under Johnson v. United States, 135
S.Ct. 2551 (2015) (Mot. to Vacate 1, ECF No. 76). On
March 7, 2016, the Court appointed the Federal Public
Defender's Office to represent the defendant and review
the defendant's case. (See Order, Mar. 7, 2016, ECF No.
78). The Federal Public Defender, on behalf of the defendant,
filed the Motion to Dismiss the pending Motion to Vacate
without prejudice in order for the defendant to seek
permission from the Fourth Circuit to file a successive
Section 2255 petition. (Mot. to Dismiss 2, ECF No. 85).
after the Federal Public Defender filed the Motion to
Dismiss, the defendant wrote a letter to the Clerk of Court,
asking that the Motion to Vacate not be dismissed because he
was certain that he was "entitled to relief under
2255(f)(4), and did not need permission to file a Second and
Successive 2255...." (Resp. in Opp'n 1, ECF No. 86).
In the alternative, the defendant stated, "if the court
believes that I need to seek Authorization to gain
jurisdiction-then could the court hold my petition in
Abeyance' until I seek such permission from the Appellate
Court instead of dismissing the petition." (Id.).
Nevertheless, the defendant filed a motion for authorization
to file a second or successive Section 2255 motion with the
Fourth Circuit. (See Order, May 3, 2016, ECF No. 89).
3, 2016, the Fourth Circuit issued an order denying the
defendant's motion for authorization to file a second or
successive Section 2255 motion because "the new rule of
constitutional law announced in Johnson and held to apply
retroactively to cases on collateral review by Welch v.
United States, ___ S.Ct. ___, No. 15-6418, 2016 WL 1551144
(U.S. Apr. 18, 2016), entitles [the defendant] to no
relief." (Id. 1).
defendant brings his Motion to Vacate under Sections 2255,
2241, and 1651, asking the Court to resentence him under
Johnson, which he contends renders his current sentence
"illegal because his sentence exceeds the statutory
maximum...." (Mot. to Vacate 1).
motion to vacate under Section 2255 is the required mechanism
to bring a collateral attack challenging the validity of a
sentence imposed by a federal court. In re Vial, 115
F.3d 1192, 1194 (4th Cir. 1997) (en banc) (citations
omitted). The defendant's Johnson-based claims seek to
attack the underlying validity of his sentence, not the
manner of its execution; therefore, Sections 2241 and 1651
are inapposite to the Motion to Vacate. See id. at 1194 n.5
("[A]ttacks on the execution of a sentence are properly
raised in a Â§ 2241 petition."). The defendant filed his
Motion to Vacate pro se, captioning it as "Motion to
Vacate Sentence Pursuant to 28 U.S.C. Â§ 2255, and in [t]he
alternative Â§ 2241, and Â§ 1651...." However, the subject
matter of a motion, not the caption assigned to it by a pro
se litigant, determines its classification by the Court.
United States v. Winestock, 340 F.3d 200, 203 (4th
Cir. 2003) (citation omitted). The subject matter of the
Motion to Vacate indicates that the defendant seeks to
challenge the validity of his sentence; accordingly, Section
2255 is the only relevant statute as to his motion.
stated above, the defendant has already filed one Section
2255 petition, which was adjudicated on the merits. His
current Motion to Vacate seeks to challenge the same
convictions and sentence that already have been adjudicated;
accordingly, it is successive. See Slack v.
McDaniel, 529 U.S. 473, 485-86 (2000) (to qualify as a
successive petition, the prior petition must have been
adjudicated on the merits).
second or successive motion must be certified as provided in
28 U.S.C. Â§ 2244. 28 U.S.C. Â§ 2255(h). Section 2244, in
pertinent part, states that before a successive application
may be filed in the district court, the applicant must file a
motion with the Fourth Circuit "for an order authorizing
the district court to consider the application." 28
U.S.C. Â§ 2244(b)(3)(A). Absent pre-filing authorization, a
district court lacks jurisdiction to consider a second or
successive motion. Winestock, 340 F.3d at 205.
the Fourth Circuit has denied such authorization to the
defendant, the Court lacks jurisdiction to consider the
defendant's successive Motion to Vacate. Furthermore,
because the Fourth Circuit denied the defendant's motion
for authorization, the defendant's Motion to Dismiss to
"seek permission to file a ...