United States District Court, D. South Carolina, Florence Division
L. Wooten Chief United States District Judge.
matter comes before the Court for consideration of a motion
filed by Petitioner Derrick Anthony Lucas in which he asserts
prosecutorial misconduct during his trial. Because this
filing challenges his 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
was convicted at trial of Possession With Intent to
Distribute 5 Grams or More of Cocaine Base (Count 1), Using
and Carrying a Firearm During and in Relation to and
Possessing a Firearm in Furtherance of a Drug Trafficking
Crime (Count 2), and Felon in Possession of a Firearm (Count
3), and the Court sentenced him to an aggregate sentence of
384 months. He filed a direct appeal, but the Fourth
Circuit affirmed. United States v. Lucas, 346
Fed.Appx. 910, 912 (4th Cir. 2009). He did not seek a writ of
certiorari from the Supreme Court.
January 7, 2011, Petitioner filed a § 2255 petition. ECF
No. 139. After briefing, the Court denied the petition on the
merits. ECF No. 151. He filed a direct appeal, but the Fourth
Circuit declined to issue a certificate of appealability and
dismissed the appeal. United States v. Lucas, 470
Fed.Appx. 120 (4th Cir. 2012).
October 26, 2016, he filed another § 2255 petition, this
time asserting that he was entitled to a downward departure
based on the allegedly harsh conditions of his pretrial
confinement. ECF No. 194. The Court dismissed this petition
as successive. ECF No. 196.
about August 23, 2017, Petitioner filed the instant §
2255 petition, in which he asserts that the prosecutor
engaged in misconduct by allegedly allow perjured testimony
during Petitioner's trial. ECF No. 203. 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
second or successive petition. A second or 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 second or successive. He has not received
an order from the Fourth Circuit authorizing a second or
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 second
or 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