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 motion
filed by Petitioner Kartarie Sahndal Prince Leake entitled
“Motion for Relief from Judgment.” ECF No. 1148.
Because this filing challenges his underlying conviction and
sentence, the Court construes it as a petition for relief
pursuant to 28 U.S.C. § 2255. For the reasons stated
below, the Court dismisses the petition.
Factual and Procedural History
pled guilty to a drug conspiracy charge, and the Court
sentenced him to 180 months incarceration pursuant to a Rule
11(c)(1)(C) agreement. He did not file a direct appeal.
timely filed a § 2255 petition, which the Court denied
on the merits after briefing. ECF Nos. 850, 934. He filed a
direct appeal, but the Fourth Circuit declined to issue a
certificate of appealability and dismissed his appeal.
United States v. Leake, 604 F. App'x 313 (4th
March 21, 2017,  Petitioner filed the instant § 2255
petition, in which he asserts that his counsel had a conflict
of interest in light of her prior employment as an AUSA and
that the drug statute to which he pled guilty is
unconstitutional under the Commerce Clause. 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
successive petition. A 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 successive. He has not received an order
from the Fourth Circuit authorizing a 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 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 is
filed in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the
district court to consider the application.' 28 U.S.C.
§ 2244(b)(3)(A). This he has not done.”).
these reasons, Petitioner's petition for relief pursuant
to § 2255, ECF No. 1148, is DENIED. ...