Plunkett v. USA - 2255, No. 1:2016cv01656 - Document 2 (D. Md. 2016)

Court Description: MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 12/13/2016. (kw2s, Deputy Clerk)(c/m 12.13.16)

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Plunkett v. USA - 2255 Doc. 2 I~. : , '('7 , IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND: ff 13 ,'.' I:: .,' GEORGE LAMAR PLUNKETT Petitioner, Criminal Action No. ELH-l 1-258 Civil Action No. ELH-16-1656 v. UNITED STATES OF AMERICA, Respondent. MEMORANDUM On June 29, 2012, pursuant to Fed. R. Crim. P. II(c)(l)(C), George Lamar Plunkett, petitioner, entered a plea of guilty to "Conspiracy to Distribute and Possess with the Intent to Distribute Cocaine," in violation of 21 U.S.C. ~ 846. ECF 98; ECF 99. In accordance with the terms of the C plea, he was sentenced to a period of 180 months imprisonment and five years' 1 supervised release. ECF 133; ECF 134. Petitioner filed a motion to vacate on December 10, 2012, arguing ineffective assistance of counsel. ECF 162. That motion was denied by Memorandum Opinion and Order of November 27, 2013. ECF 254; ECF 255. On May 26, 2016, Plunkett tiled a second "Motion under 28 U.S.C.~ 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody." ECF 478 ("Motion"). The government responded with a motion to dismiss. ECF 484 ("Motion to Dismiss"). Plunkett did not file a reply, and the time to do so has long expired. No hearing is necessary to resolve this matter. See 28 U.S.c. ~ 2255(b). For the reasons stated below, I shall grant the Motion to Dismiss. I Plunkett's sentence was well below the advisory guidelines range of262 to 327 months' incarceration. Dockets.Justia.com Discussion2 Plunkett's Motion is summarily based on Johnson v. United Slales, 135 S. Ct. 2551 (2015). However, 28 U.S.C. S 2255(h) is pertinent. It provides: A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain-(I) 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 factlinder 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. Therefore, a second or successive petition must be authorized by the appropriate appellate court. See Uniled Slales v. Poole, 53 I F.3d 263, 266 n.4 (4th Cir. 2008). However, Plunkett has not filed a request for authorization from the United States Court of Appeals for the Fourth Circuit. Therefore, the Motion has not been authorized. Accordingly, I shall grant the government's motion to dismiss. Unless a certilicate of appealabilty ("CON') court's decision in a S 2255 proceeding. 28 U.S.c. is issued, a petitioner may not appeal the S 2253(c)(I); Fed. R. App. P. 22(b). A COA may issue only if the petitioner "has made a substantial showing of the denial of a constitutional right." 28 U.S.c. S 2253(c)(2). The petitioner "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Tennard v. Drelke, 542 U.S. 274, 282 (2004) (citation and internal quotation marks omitted), or that "the issues presented are adequate to deserve encouragement to proceed further," Miller-E/ v. To the extent relevant, [ incorporate here the factual and procedural background set forth in ECF 254. 2 Cockrell, 537 U.S. 322, 327 (2003).3 Because petitioner has not made a substantial showing of the denial of his constitutional rights, this court will not issue a COA. An Order follows. Date: j)~f).~ Ellen 1. Hollander United States District Judge 3 The denial of a COA does not preclude a petitioner from seeking permission from the appellate court for a COA.

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