United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE, SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the court on Defendant's pro se motion
to “Correct Clerical Error and Sentence” pursuant
to Fed. R. Crim. P. 36. ECF No. 176. Defendant argues his
PreSentence Report (“PSR”) is incorrect where it
states “attorney representation unknown” for his
1988 conviction for possession with intent to distribute
cocaine, and he has documentation this is incorrect.
Id. at 2. He further contends his previous
convictions for ABHAN and his South Carolina drug convictions
cannot be considered predicate offenses for purposes of the
Armed Career Criminal Act, and he “is no longer subject
to the ACCA.” Id. at 4.
previously sought permission to file a successive § 2255
motion challenging his ACCA predicates and the issue of
counsel for his 1988 PWID conviction. The Fourth Circuit
denied permission, because “at least three of
Vinson's prior convictions remain predicate offenses
under 18 U.S.C. § 924(e) after the retroactive
application of Johnson.” In re: Wayne Vinson, No.
16-9119 at ECF No. 11.
motion is, in reality, either a motion under 28 U.S.C.
§2241 or another challenge to his previously-imposed
sentence and is therefore a second or successive motion for
relief under 28 U.S.C. § 2255. 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). See also Rule 9 of the Rules Governing 2255
Proceedings (“Before presenting a second or successive
motion, the moving party must obtain an order from the
appropriate court of appeals authorizing the district court
to consider the motion . . . .”).
requirement of filing a motion with a court of appeals (in
this instance, the Fourth Circuit) for permission and
securing permission to file a second or successive motion is
jurisdictional. Therefore, to the extent this motion can be
construed as one under § 2255, Defendant's failure
to secure permission from the Fourth Circuit Court of Appeals
prior to its filing means the court is without jurisdiction
to consider it.
2241 provides an avenue for a defendant to challenge his
conviction if § 2255 is inadequate and ineffective to
test the legality of his sentence, provided:
at the time of sentencing, settled law of this circuit or the
Supreme Court established the legality of the sentence; 2)
subsequent to the prisoner's direct appeal and first
§2255 motion, the aforementioned settled substantive law
changed and was deemed to apply retroactively on collateral
review; 3) the prisoner is unable to meet the gatekeeping
provisions of § 2255(h)(2) for second or successive
motions; and 4) due to this retroactive change, the sentence
now presents an error sufficiently grave to be deemed a
United States v. Wheeler, 886 F.3d 415, 429 (4th
Cir. 2018). However, Defendant is unable to satisfy the
requirements of the Wheeler test in this case. While some law
regarding Defendant's ACCA status may have changed,
Defendant still has three convictions qualifying him for ACCA
status: his two drug convictions and the pointing and
presenting conviction. The law holding these convictions ACCA
predicate offenses remains intact. See United States v.
Furlow, 928 F.3d 311 (4th Cir. 2019); United States
v. King, 673 F.3d 274 (4th Cir. 2012). Therefore,
Defendant's sentence does not present a grave error
deemed a fundamental defect.
Defendant's motion is dismissed as this court is without
jurisdiction to entertain it or, in the alternative, denied.
governing law provides that:
(c)(2) A certificate of appealability may issue . . . only if
the applicant has made a substantial showing of the denial of
a constitutional right.
(c)(3) The certificate of appealability . . . shall indicate
which specific issue or issues satisfy the showing required
by paragraph (2).
28 U.S.C. § 2253(c). A prisoner satisfies this standard
by demonstrating that reasonable jurists would find this
court's assessment of his constitutional claims is
debatable or wrong and that any dispositive procedural ruling
by the district court is likewise debatable. See
Miller-El v. Cockrell,537 U.S. 322, 336 (2003);
Slack v. McDaniel,529 U.S. 473, 484 (2000);
Rose v. Lee,252 F.3d 676, 683 (4th Cir. 2001). In
this case, the legal standard for the ...