Shelton v. Commonwealth of Virginia, No. 3:2015cv00533 - Document 18 (E.D. Va. 2016)
Court Description: MEMORANDUM OPINION. Read Opinion for complete details. Signed by District Judge Robert E. Payne on 10/05/2016. Copy mailed to Petitioner.(ccol, )
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Shelton v. Commonwealth of Virginia Doc. 18 IN THE UNITED STATES DISTRICT COURT II FOR THE EASTERN DISTRICT OF VIRGINIA L Richmond Division SHERMAN L. SHELTON, OCT - 6 » JR., il CLERK. U.S. DiSTRiCT C0UR1 Petitioner, RICHMOND. VA Civil Action No. V. 3:15CV533 COMMONWEALTH OF VIRGINIA, Respondent. MEMORANDUM OPINION Petitioner, Sherman proceeding pro se, VACATE, THAT (hereinafter, Court for Shelton, Jr., a Virginia filed this action which he titled, SET ASIDE, CONVICTION L. AND IS "Motion evaluation DECLARE VOID AB NULL AND INITIO. to Vacate."}. pursuant to THE "MOTION TO JUDGMENT 'INDEPENDENT The 28 VOID, matter U.S.C. is inmate OF ACTION'" before the § 1915(e)(2) and Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.^ As explained below, the Motion to ^ According to Rule 4 of the Rules Governing Section 2254 cases: The clerk must promptly forward the petition to a judge under the court's assignment procedure, and the judge must promptly examine it. If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner. Rules Governing § 2254 Cases in U.S. District Courts, Rule 4. Dockets.Justia.com Vacate will be dismissed because it is a successive, unauthorized § 2254 petition. Shelton was of Spotsylvania building. convicted in the for robbery and threatening Shelton No. 3:08CV70, v. Dir. 2008 WL 4361051, On September 24, 2008, of at *1 (E.D. above In his present Motion to Vacate, for the County to burn or bomb a Virginia this Court denied a by Shelton challenging the challenge his Circuit Court Dep't Va. of Sept. Corr., 24, 2008), § 2254 petition filed convictions. Id. at *1, *7. Shelton once again attempts to Spotsylvania convictions, this time invoking the Court's jurisdiction under Federal Rule of Civil Procedure 60(b) & (d) . (Mot. Vacate 2 .) The Antiterrorism and Effective Death Penalty Act restricted the second successive or jurisdiction of the applications district for courts federal habeas of to 1996 hear corpus relief by prisoners attacking the validity of their convictions and sentences Felker v. by Turpin, "[b]efore a establishing 518 U.S. a 651, "'gatekeeping' 657 (1996). mechanism." Specifically, 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 § 2244(b)(3)(A). to consider the application." 28 U.S.C. The United States Court of Appeals for the Fourth Circuit has held "that district courts must treat Rule 60 (b} motions as successive collateral review applications when failing to do so would allow the applicant to 'evade the bar against relitigation of claims presented in a prior application or the bar against litigation of claims United States v. (quoting Calderon Additionally, the not presented in a Winestock, v. 340 F.3d 200, Thompson, Fourth 523 Circuit has guidance in distinguishing between a and an improper successive § prior application. '" 206 U.S. (4th Cir. 538, provided 553 the 2003) {1998)). following proper Rule 60 (b} motion 2255 motion or habeas petition: [A] motion directly attacking the prisoner's conviction or sentence will usually amount to a successive application, while a motion seeking a remedy for some defect in the collateral review process will generally be deemed a proper motion to reconsider. Thus, a brand-new, free - standing allegation of constitutional error in the underlying criminal judgment will virtually always implicate the rules governing successive applications. Similarly, new legal arguments or proffers of additional evidence will usually signify that the prisoner is not seeking relief available under Rule 60(b) but is instead continuing his collateral attack on his conviction or sentence. Id. at 207 (citations omitted}. Here, Shel ton' s Motion to Vacate raises challenges to his Spotsylvania convictions, rather than any defects argues that in his numerous federal errors habeas proceedings. occurred during his See Gonzalez v. Crosby, 545 U.S. 524, 530-32 3 (2005} state Shelton trial. (construing a motion as a successive habeas corpus application if it seeks vindication of a claim for relief from the criminal judgment, regardless of the title on the motion) Accordingly, the Court must treat the Motion to Vacate as successive § 2254 petition. United States v. Merica, Nos. 5:04CR00015, 5;11CV80375, 2011 WL 6325881, action at *1 under motion). (W.D. Va. Fed. The R. Court Dec. 16, Civ. has P. not 2011) 60(d) received as (treating independent a successive authorization Fourth Circuit to file the present § 2254 petition. the action will be dismissed for want of § from 2255 the Therefore, jurisdiction. The Court denies a certificate of appealability. An appropriate Final Order will accompany this Memorandum Opinion. Date: f) ^ t <• Richmond, Virginia L, Mt Robert t&iited States District Judge Senior E. Payne
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