Hicks v. Commonwealth of Virginia et al, No. 3:2016cv00946 - Document 9 (E.D. Va. 2017)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 05/10/2017. Copy mailed to Petitioner. (tjoh, )
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Hicks v. Commonwealth of Virginia et al Doc. 9 IN THE UNITED MAY I I 201? STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Ridiniond Division Kicnmona jjivibioh OZELIA HICKS, CLERK, RICHMOND. VA court U.S. district JR., Petitioner, V. Civil Action No. COMMONWEALTH OF VIRGINIA, ^ 3:16CV946 al., Respondents. MEMORANDUM OPINION Petitioner Ozelia Hicks, Court of Chesterfield pretenses and See Hicks v. Va. Mar. 3, March 3, was 2016). 2016, County sentenced Clarke, Jr. No. was for to 3:15CV123, 1, entitled "MOTION far from money of by 2016, 2016 WL 901265, at *1 (E.D. By Memorandum Opinion and Order entered on the Court FOR NEW 60(b) lucid false incarceration. this Court denied Hicks's petition for a December ("Rule obtaining seven years habeas corpus pursuant to 28 U.S.C. 60(b)" convicted in the Circuit Rule received TRIAL Motion," 60(b) § 2254. ECF No. Motion, See id. at *9. from PURSUANT TO writ of Hicks CODE § 1). submission 8.01-428 In his Hicks a clearly On Rule rambling and continues to attack the sufficiency of the evidence and other errors in the criminal e.g., Motion, proceeding id. as at 2.) leading to Despite labeling explained below, his Hicks's state his Rule conviction. motion 60(b) treated as a successive, unauthorized 28 U.S.C. a Rule (See, 60(b) Motion must be § 2254 petition. Dockets.Justia.com The Antiterrorism and Effective Death restricted the second successive or jurisdiction of the applications Penalty Act district for of to courts federal 1996 hear habeas corpus relief by prisoners attacking the validity of their convictions and sentences by establishing a "gatekeeping mechanism." V. Turpin, 518 omitted). U.S. 651, 657 Specifically, (1996) (internal [b] efore a Felker quotation marks 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). The United States Court of Appeals has held "that district courts must for the Fourth Circuit 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 United States (quoting v. Calderon Additionally, guidance claims the not presented Winestock, v. in 340 F.3d Thompson, 523 Fourth Circuit 200, U.S. has in distinguishing between a a prior 206 application.'" (4th Cir. 538, provided 553 the proper Rule 2003) (1998)). following 60(b) motion and an improper successive § 2255 motion or habeas petition; [A] motion directly conviction or sentence successive application, remedy for some defect attacking the prisoner's will usually amount to a while a motion seeking a in the collateral review process will generally be deemed a reconsider. Thus, a proper motion to 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 raises (citations omitted). challenges any defects to in his his Here, Hicks's Rule 60(b) Motion Chesterfield conviction, federal habeas rather proceedings. While than Hicks cites several Federal Rules of Civil Procedure and mentions the Magistrate Judge's name in his Rule 60(b) Motion to suggest that the Court erred in dismissing his first § 2254 petition. clearly intends to attack his conviction and sentence.^ further indicator conviction. that Hicks intends to attack his Hicks As a state Hicks submits portions of the trial transcript that he believes illustrate his points about errors in his criminal proceedings. his federal (ECF No. 1-1.) habeas Instead of demonstrating defects in proceedings. Hicks enumerates purported ^ Hicks's subsequent filings in this action also demonstrate his true intent to attack his state conviction and sentence. For example, in his Motion to Expedite Appeal Bond as a Matter of Law, Hicks challenges his remaining state sentence, asks this Court to alter the sentence imposed by the state court (see ECF No. 2, at 3-4), and once again attempts to attack the sufficiency of the evidence supporting his conviction (id. at 6-11). In his Motion for Writ of Mandamus Appeal Bond, he claims that trial and appellate counsel erred (ECF No. 5, at 4), the prosecutor engaged in misconduct (id. at 5), and insufficient evidence existed to support his conviction of larceny by false pretenses (id. at 6). errors that occurred during his Crosby, 545 U.S. 524, 530-32 state (2005) trial. See Gonzalez v. (construing a motion as a successive habeas corpus application if it seeks vindication of a claim for relief from the criminal judgment, the motion is labeled)Accordingly, Rule has 60(b) not Motion as a successive § received authorization from the present § 2254 petition. regardless of how the Court must treat the 2254 the petition. The Fourth Circuit Therefore, the to Court file action will be dismissed for want of jurisdiction. Hicks's Motion to Expedite Appeal Bond as a Matter of Law (ECF No. 2) , Motion for Writ of Mandamus Appeal Bond (ECF No. 5), Motion to Correct the Record (ECF No. 6), and Motion for Summary Judgment (ECF No. 7) will be denied.^ An appeal may not be taken from the final order in a § 2254 proceeding unless a judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). A certificate of appealability will not issue unless a prisoner makes "a substantial showing of the denial This could of a constitutional requirement debate is whether right." satisfied (or, 28 only for when that U.S.C. § 2253(c)(2). ''reasonable matter, agree jurists that) the petition should have been resolved in a different manner or that ^ Hicks identifies no discernable defect in the collateral review process despite his frequent inclusion of the Magistrate Judge's name. ^ All of these documents continue to attack his underlying conviction and sentence no matter the 4 title. the issues presented were proceed further.'" 'adequate to deserve encouragement to Slack v. McDaniel, 529 U.S. 473, 484 (quoting Barefoot v. Estelle, 463 U.S. Because Hicks fails 880, 893 & n.4 to satisfy this standard, a (2000) (1983)). certificate of appealability will be denied. The Clerk is directed to send a copy of the Memorandum Opinion to Hicks. It is so ORDERED. ^ Date: Richmond, Virginia Robert E. Payne /s/ Senior United States District Judge
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