United States District Court, D. South Carolina, Florence Division
Bryan Harwell, United States District Judge.
matter is before the Court on the motion of Frederick Lynn
Sellers (the “petitioner”) for modification of
his sentence pursuant to 18 U.S.C. § 3582(c)(1). (ECF
No. 129). For the reasons set forth in this Order, the Court
finds that the petitioner's motion is appropriately
construed pursuant to 28 U.S.C. § 2255, and the
petitioner's motion is dismissed for lack of
2001, the petitioner was charged in a ten-count indictment.
(ECF No. 7). Following a jury trial, the petitioner was
convicted of nine counts: one count of conspiring to possess
and distribute over fifty grams of crack cocaine, in
violation of 21 U.S.C. § 846; three counts of possession
with intent to distribute crack cocaine, in violation of 21
U.S.C. § 841(a)(1) and 18 U.S.C. § 2; four counts
of possession of a firearm by a convicted felon, in violation
of 18 U.S.C. §§ 922(g)(1) and 924(a); and one count
of kidnapping resulting in death, in violation of 18 U.S.C.
§ 1201. (ECF No. 50). In 2002, the Court sentenced the
petitioner to a term of life imprisonment. (Id.).
The petitioner appealed his conviction and sentence, which
the Fourth Circuit Court of Appeals affirmed on April 11,
2003. United States v. Sellers, 62 F. App'x 499,
501 (4th Cir. 2003) (per curiam).
October 2004, the petitioner filed a motion under 28 U.S.C.
§ 2255 to vacate, set aside, or correct his sentence.
(Case No. 4:04-cv-22627-CWH, ECF No. 1). The government filed
a response in opposition and motion for summary judgment
(id., ECF No. 9), and the petitioner filed a reply
and response in opposition to the motion for summary
judgment, (id., ECF No. 14). After analyzing the
petitioner's eight grounds for relief, the Court granted
summary judgment to the government, dismissing the
petitioner's motion. (Id., ECF No. 21). On
appeal, the Fourth Circuit affirmed summary judgment and
denied the petitioner's motion for a certificate of
appealability. United States v. Sellers, 173 F.
App'x 296, 297 (4th Cir. 2006) (per curiam).
in December 2007, the petitioner filed a motion captioned as
a petition for relief from judgment pursuant to Rule 60(b) of
the Federal Rules of Criminal Procedure. (Case No.
4:04-cv-22627-CWH, ECF No. 32). Construing the motion under
§ 2255, the Court dismissed the motion for lack of
jurisdiction because the Fourth Circuit did not authorize the
petitioner to file a successive § 2255 motion.
(Id., ECF No. 58). On appeal, the Fourth Circuit
dismissed the petitioner's appeal and, construing the
petitioner's notice of appeal as an application to file a
successive § 2255 motion, denied authorization to file a
successive § 2255 motion. United States v.
Sellers, 440 F. App'x 190, 190-91 (4th Cir. 2011)
2014, the petitioner filed another successive motion under
§ 2255 without receiving authorization from the Fourth
Circuit. (ECF No. 87). Accordingly, the Court dismissed the
motion for lack of jurisdiction. (ECF No. 124).
about November 28, 2016, the petitioner filed the instant
motion pro se, seeking reduction of his sentence
pursuant to 18 U.S.C. § 3582(c)(1). The government
filed a response in opposition (ECF No. 133), and the
petitioner filed a reply thereto. (ECF No. 134).
STANDARD OF REVIEW
Court is charged with liberally construing pro se
complaints and petitions, which are held to a less stringent
standard than those drafted by attorneys, in order to allow
the development of a potentially meritorious case. Hughes
v. Rowe, 449 U.S. 5, 9-10 (1980) (per curiam) (citations
omitted). Liberal construction, however, does not mean that
the Court may ignore a clear failure in the pleadings to
allege facts that set forth a cognizable claim. See
Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391
(4th Cir. 1990) (“The ‘special judicial
solicitude' with which a district court should view such
pro se complaints does not transform the court into an
petitioner's motion at issue seeks to challenge the
validity of his sentence, contending that “[t]he
extraordinary and compelling circumstances surrounding this
case should move this Honorable court to reverse and remand
for sentencing as to count one without the cross reference
for murder pursuant to [§ 2A1.1 of the Federal
Sentencing Guidelines][.]” (Mot. for Modification of
Imposed Term of Imprisonment 11, ECF No. 129).
motion under 28 U.S.C. § 2255 is the required mechanism
to bring a collateral attack challenging the validity of a
sentence imposed by a federal court. In re Vial, 115
F.3d 1192, 1194 (4th Cir. 1997) (en banc) (citations
omitted). Although the petitioner captioned his motion as a
“motion for modification of imposed term of
imprisonment pursuant to § 3582(C)(i)[, ]” the
subject matter of a motion, not the caption assigned to it by
a pro se litigant, determines its classification by
the Court. United States v. Winestock, 340 F.3d 200,
203 (4th Cir. 2003) (citations omitted). The subject matter
of the motion indicates that the petitioner seeks to
challenge the validity of his sentence; accordingly, §
2255 is the only relevant statute as to his motion.
stated above, the petitioner has already filed one §
2255 motion in 2004, which was adjudicated on the merits and
affirmed on appeal, as well as unauthorized successive §
2255 motions in 2007 and 2014, which were subsequently
dismissed. His current motion seeks to challenge the same
conviction and sentence that have already been adjudicated;
accordingly, it is successive. See Slack v.
McDaniel, 529 U.S. 473, 485-86 ...