Brown v. United States Of America, No. 7:2005cv00707 - Document 2 (W.D. Va. 2005)
Court Description: OPINION. Signed by Judge James P. Jones on 11/20/05. (Callahan, Sharon)
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Brown v. United States Of America Doc. 2 Not Intended for Print Publication IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ROANOKE DIVISION JOHNNY M. BROWN, ) ) Petitioner, ) ) v. ) ) UNITED STATES OF AMERICA, ) ) Respondent. ) Case No. 7:05-CV-00707 OPINION By: James P. Jones Chief United States District Judge Johnny M. Brown, Pro Se. The petitioner Johnny M. Brown, Reg. No. 04780-084, a federal inmate proceeding pro se, has submitted to the court a pleading that he styles as a Petition for a Writ of Scire Facias in which he seeks to be resentenced under United States v. Booker, 125 S. Ct. 738 (2005), and other precedent issued after his conviction became final. Because Brown challenges the validity of his criminal sentence,1 I construe his pleading as a Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C.A. § 2255 (West Supp. 2005). Upon review of the petition and court records, I find that Brown s § 2255 motion must be dismissed as successive. 1 The writ of scire facias was abolished in the federal court system in 1937. See Fed. R. Civ. P. 81(b). Dockets.Justia.com The court s records indicate that in 1995 a jury found Brown guilty on federal charges of conspiracy to distribute cocaine and related offenses for which he is now serving a sentence of life imprisonment. See Case No. 3:94-CR-00027. The United States Court of Appeals for the Fourth Circuit affirmed his convictions in 1997. In May 1999, Brown filed a § 2255 motion regarding the same conviction and sentence, Case No. 7:99-CV-00346. The court dismissed this petition by opinion and order entered June 16, 2000, finding no ground upon which Brown was entitled to relief under § 2255 and the Fourth Circuit later affirmed the judgment. Based on the foregoing, I conclude that petitioner's current § 2255 motion is a second or subsequent one. This court may consider a second or successive § 2255 motion only upon specific certification from the United States Court of Appeals for the Fourth Circuit that the claims in the motion meet certain criteria.2 See § 2255 para. 8. As Brown offers no indication that he has obtained certification from the court of appeals to file a second or successive § 2255 motion, I must dismiss his current action without prejudice. A separate Final Order will be entered herewith. 2 To obtain certification from the Fourth Circuit, the petitioner must submit a copy of the § 2255 motion to the court of appeals, along with a motion requesting certification for the district court to review a successive § 2255 motion. See 28 U.S.C. § 2244 (West Supp. 2005). Petitioner may write to request a form and instructions for filing this motion at the following address: Office of the Clerk, United States Court of Appeals for the Fourth Circuit, 900 E. Main St., Richmond, VA 23219. -2- ENTER: November 20, 2005 /s/ JAMES P. JONES Chief United States District Judge -3-
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