United States District Court, W.D. Pennsylvania
MEMORANDUM AND ORDER
Bissoon United States District Judge
the Court is Petitioner Byron Rice's
“Second-In-Time § 2255” Motion to vacate,
set aside or correct his sentence. Doc. 112. For the reasons
that follow, the Court will dismiss Petitioner's Motion
as a second or successive petition.
7, 2009, a federal grand jury returned an Indictment charging
Petitioner with one count of conspiracy to distribute and
possession with intent to distribute heroin in violation of
21 U.S.C. § 846. Doc. 1. On October 15, 2010, Petitioner
pleaded guilty pursuant to a plea agreement. Doc. 72. On
February 25, 2011, the Court sentenced Petitioner to 168
months in prison. Doc. 90. Petitioner did not file a direct
February 29, 2012, Petitioner filed his first motion to
vacate, set aside or correct his sentence pursuant to 28
U.S.C. § 2255. Doc. 97. The Court denied the motion, and
Petitioner appealed and requested a certificate of
appealability from the Court of Appeals for the Third
Circuit. Doc. 106. On February 27, 2013, the Circuit Court
denied Petitioner's request for a certificate of
appealability. Doc. 109.
10, 2017, Petitioner filed the instant 2255-Motion. Doc. 112.
The government has responded, Doc. 114, and the Motion is
ripe for adjudication.
Applicable Legal Standards
motion to vacate sentence pursuant to 28 U.S.C. § 2255
is the means to collaterally challenge a federal conviction
or sentence.” Massey v. U.S., 581 F.3d 172,
174 (3d Cir. 2009). Relief is available under § 2255
only under exceptional circumstances, where the claimed
error(s) reflect a “a fundamental defect . . .
inherently result[ing] in a complete miscarriage of justice,
” or “an omission inconsistent with the
rudimentary demands of fair procedure.” Hill v.
U.S., 368 U.S. 424, 428 (1962). The Court need not hold
an evidentiary hearing if the record conclusively shows that
the petitioner is not entitled to relief. U.S. v.
Ritter, 93 F. App'x. 402 (3d Cir. 2004). Under this
standard, a hearing is unnecessary in this case.
Petitioner's § 2255 Motion is second or
1996, Congress enacted the Antiterrorism and Effective Death
Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24,
1996), which dictates that a petitioner who already has filed
a § 2255 petition may only file a “second or
successive motion” if the court of appeals has
certified that the motion contains either: (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).
petitioner's failure to seek . . . authorization from the
appropriate court before filing a second or successive habeas
petition acts as a jurisdictional bar.” Blystone v.
Horn, 664 F.3d 397, 412 (3d Cir. 2011) (citation to
quoted source omitted). The Court determines whether a
petition is second or successive by looking at the
judgment-challenged. U.S. v. Winkelman, 746 F.3d
134, 135 (3d Cir. 2014) (citations and internal quotations
omitted). In Winkelman, where the defendants
challenged the same judgment of conviction previously
contested, the Circuit Court had “little difficulty
finding [the] late[r] filings to be successive.”
current Motion challenges the same judgment of conviction and
sentence as his prior petition. The Motion is second or
successive, and the only way it may be considered (absent the
Circuit Court's prior authorization) is if it meets the
“newly discovered evidence” or “new rule of
constitutional law” standards. ...