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Trappier v. United States

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

June 13, 2017

Anthony Gene Trappier, PETITIONER
v.
United States of America, RESPONDENT C/A No. 4:17-cv-01049-TLW

          ORDER

          Terry L. Wooten Chief United States District Judge.

         This matter comes before the Court for consideration of the motions filed by Petitioner Anthony Gene Trappier entitled “Motion Pursuant to Rule 60(b)(2) and 60(b)(6), ” ECF No. 188, and “Motion Pursuant to Rule 60(b)(6), ” ECF No. 189. Because these filings challenge his underlying conviction and sentence, the Court construes them as petitions for relief pursuant to 28 U.S.C. § 2255. For the reasons stated below, the Court dismisses the petitions.

         I. Factual and Procedural History

         Petitioner pled guilty to charges of drug conspiracy and possession of a firearm in furtherance of a drug trafficking crime, and the Court sentenced him as a career offender to 262 months on the drug charge and 60 months consecutive on the gun charge. He filed a direct appeal, but the Fourth Circuit affirmed. United States v. Trappier, 447 F. App'x 463 (4th Cir. 2011).

         Petitioner then filed a § 2255 petition, which the Court denied on the merits after briefing. ECF Nos. 140, 162. After the Court denied his motion to reconsider, ECF Nos. 167, 170, he filed a direct appeal, but the Fourth Circuit declined to issue a certificate of appealability and dismissed his appeal. United States v. Trappier, 647 F. App'x 199 (4th Cir. 2016). The Supreme Court denied his petition for a writ of certiorari. Trappier v. United States, 137 S.Ct. 396 (2016).[1]

         Petitioner then filed a motion in the Fourth Circuit under 28 U.S.C. § 2244 for permission to file a successive petition under § 2255, but the Fourth Circuit denied the motion. In re: Anthony Trappier, No. 17-110 (4th Cir. Jan. 30, 2017).

         Undeterred, Petitioner filed another motion in the Fourth Circuit under 28 U.S.C. § 2244 for permission to file a successive petition under § 2255, but the Fourth Circuit again denied the motion. In re: Anthony Trappier, No. 17-154 (4th Cir. Mar. 6, 2017).

         Petitioner filed the instant § 2255 petitions on March 24, 2017[2] and April 17, 2017, [3] in which he generally challenges his convictions and sentences. He has not received permission from the Fourth Circuit under 28 U.S.C. § 2244 to file these successive petitions.

         II. Discussion

         The Court does not have jurisdiction to consider Petitioner's petitions. 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; 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 petitions are successive. He has not received an order from the Fourth Circuit authorizing a successive petition. Consequently, the Court is without jurisdiction to consider them. 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 ...


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