United States District Court, D. South Carolina, Charleston Division
PATRICK MICHAEL DUFFY United States District Judge.
prisoner Larry Simmons has filed a pro se motion
attacking the sentence this Court imposed upon him (ECF No.
114). For the following reasons, the Court dismisses the
motion for lack of jurisdiction.
2012, Simmons pled guilty to one count of possession with
intent to distribute crack cocaine. See 21 U.S.C.
§ 841(a)(1), (b)(1)(B). Before the hearing, the
Government filed an information stating Simmons was subject
to enhanced penalties because of his criminal history.
See 21 U.S.C. § 851. Based in part on the
§ 851 information, the Court sentenced Simmons to 262
months in prison.
motion at bar, Simmons contends this Court lacked
jurisdiction to impose any enhanced penalties because the
Court and the Government failed to comply with some of §
851's procedural requirements. Importantly, however,
Simmons has not specified what type of motion this is.
Consequently, and as part of its duty to construe pro
se filings liberally, the Court begins its consideration
of Simmons' motion by classifying it according to its
contents. See United States v. Winestock, 340 F.3d
200, 203 (4th Cir. 2003).
federal prisoner may challenge his sentence on the ground
that the sentencing court “was without jurisdiction to
impose” it. 28 U.S.C. § 2255(a). Simmons'
claims fit neatly within that provision. See, e.g.,
United States v. Farmer, No. 16-7691, 2017 WL
1241981, at *1 (4th Cir. Apr. 4, 2017) (per curiam) (finding
motion challenging enhancement of sentence under § 851
“was in substance” a § 2255 motion);
Rice v. Lamanna, 451 F.Supp.2d 755, 758 (D.S.C.
2006) (stating § 2255 encompassed claim that purported
violation of § 851 deprived court of jurisdiction to
impose enhanced sentence). Thus, the Court finds that
Simmons' motion is a § 2255 motion.
has already filed, and lost, one § 2255
motion. Congress has restricted prisoners'
ability to assert “second or successive” §
2255 motions. See 28 U.S.C. §§ 2244(b),
2255(h). A § 2255 motion attacking a particular sentence
is successive if it is filed after an earlier § 2255
motion attacking that same sentence was denied on the merits.
See, e.g., Anderson v. Holland, No.
2:13-cv-1115-JFA-BHH, 2013 WL 4496073, at *5 (D.S.C. Aug. 20,
2013) (“To be considered successive, the second or
subsequent petition must be a second attack on the same
[sentence], and the first petition must have been finally
adjudicated on the merits.”). Simmons' first §
2255 motion challenged the same sentence at issue here, and
the Court denied that motion explicitly for lack of merit.
Thus, Simmons' current § 2255 motion is successive.
prisoner cannot file a successive § 2255 motion unless a
panel of the appropriate court of appeals first certifies
that the motion contains a claim relying on:
(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). Nothing in the record indicates
that the Fourth Circuit has issued such a certification here.
Without that certification, this Court lacks jurisdiction to
review the motion. See Winestock, 340 F.3d at 205.
this Court receives an unauthorized successive § 2255
motion, it “must either dismiss the motion for lack of
jurisdiction or transfer it to” the Fourth Circuit so
that court can “perform [its] gatekeeping function
under § 2244(b)(3).” Winestock, 340 F.3d
at 207. Here, it is better to dismiss so that Simmons, if he
desires, may petition the Fourth Circuit for filing
foregoing reasons, it is ORDERED that Simmons' motion is
hereby DISMISSED without prejudice. The Court declines to
issue a certificate of appealability.