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Garcia v. United States

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

October 12, 2016

Mario Alberto Garcia, PETITIONER
v.
United States of America, RESPONDENT C/A No. 4:16-cv-01937-TLW

          ORDER

          Terry L. Wooten Chief United States District Judge

         Order

         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 Mario Alberto Garcia. For the reasons stated below, the Court dismisses the petition.

         I. Factual and Procedural History

         Petitioner pled guilty to a drug conspiracy charge. He was sentenced to 200 months imprisonment.[1]

         Petitioner 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).

         Petitioner 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.

         Petitioner filed the instant § 2255 petition on June 10, 2016.[2] 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.

         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 was previously unavailable.

28 U.S.C. § 2255(h).

         Because 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 ...


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