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McKnight v. United States

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

December 7, 2017

Shanita McKnight, PETITIONER
v.
United States of America, RESPONDENT

          ORDER

          Terry L. Wooten Chief United States District Judge.

         This matter comes before the Court for consideration of a filed by Petitioner Shanita McKnight entitled “Pursuant to Amendment 794 for Minor Role Adjustment and Sentence Reduction Based on United States v. Quintero-Leyva.” ECF No. 241. Because this filing challenges her underlying 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.

         I. Factual and Procedural History

         Petitioner was convicted at trial of charges of drug conspiracy and extortion by a public employee. The Court sentenced her to 240 months incarceration on both counts. ECF No. 162. She filed a direct appeal, and the Fourth Circuit affirmed. United States v. McKnight, 386 F. App'x 384 (4th Cir. 2010).

         Petitioner timely filed a § 2255 petition, which the Court denied on the merits after briefing. ECF Nos. 187, 219. She filed a direct appeal, and the Fourth Circuit affirmed. United States v. McKnight, 512 F. App'x 309 (4th Cir. 2013).

         On or about September 22, 2017, Petitioner filed the instant § 2255 petition, in which she asserts that she should be resentenced in light of Amendment 794 to the sentencing guidelines.[1]She 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. She 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 petition is successive. She 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.”).

         III. Conclusion

         For these reasons, Petitioner's petition for relief pursuant to § 2255, ECF No. 241, is DENIED. ...


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