United States District Court, D. South Carolina, Florence Division
L. Wooten Chief United States District Judge
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 Mario Alberto
Garcia. For the reasons stated below, the Court dismisses the
Factual and Procedural History
pled guilty to a drug conspiracy charge. He was sentenced to
200 months imprisonment.
then filed a § 2255 petition in which he asserted
several grounds for relief, including that his counsel was
ineffective in failing to file a notice of appeal despite
being directed to do so. ECF No. 216 The Court granted the
petition as to that claim, vacated and immediately reinstated
his conviction, and dismissed the remainder of the claims
without prejudice. ECF No. 237. He then filed a direct
appeal, and the Fourth Circuit affirmed. United States v.
Garcia, 540 F. App'x 164 (4th Cir. 2013).
then timely filed another § 2255 petition, setting forth
two grounds for relief: (1) that his sentencing enhancements
were decided by the Court, rather than a jury, in violation
of Alleyne v. United States, 133 S.Ct. 2151 (2013);
and (2) ineffective assistance of counsel. ECF No. 258. After
briefing, the Court granted the Government's motion for
summary judgment and dismissed the petition. ECF No. 278. He
did not file a direct appeal.
filed the instant § 2255 petition on June 10,
2016. ECF No. 289. The basis of his petition is
not entirely clear, as the only argument of any substance is
his statement that “the minimum of drug quantity - the
minimum of the drug quantity first time it should not applied
to me.” Id. at 8. In any event, he has not
received permission from the Fourth Circuit under 28 U.S.C.
§ 2244 to file this successive petition.
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;
(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
28 U.S.C. § 2255(h).
Petitioner has filed a previous § 2255 petition, the
present petition 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 petition 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 ...