WILLIAM M. NICKERSON, Senior District Judge.
Defendant Donte Rolando Harris was sentenced on January 12, 2004. On January 18, 2005, Defendant filed his first motion under 28 U.S.C. § 2255. ECF No. 135. After being supplemented, that motion was denied on March 8, 2006. ECF Nos. 156, 157. Defendant filed a second motion under § 2255 on November 22, 2006, ECF No. 172, which was denied on December 6, 2006. ECF Nos. 173, 174.
Now before the Court is a motion filed by Defendant on June 16, 2016, which purports to be seeking relief under Rule 60(b) of the Federal Rules of Civil Procedure. ECF No. 239. This motion contains three "Claims:" "Improper Sentencing Guidelines and Pre-Sentence Report Calculation;" Relevant Conduct and Loss Amount;" and "Ineffective Assistance of Counsel." Defendant acknowledges in his motion that a "district court can construe a Rule 60(b) motion into a Section 2255 [motion,]" ECF No. 239 at 3, and Defendant directs the Court, correctly, to
Defendant's current motion is clearly a successive petition. Defendant seems to argue that it can be treated otherwise based upon his representation that his previous filing "never touched on the topic herein filed." ECF No. 239 at 4. A motion simply bringing a new legal argument attacking the defendant's conviction or sentence is, by definition, a successive petition.
Under 28 U.S.C. § 2244, a petitioner may file a second or successive habeas corpus petition only if he has first obtained an order from the appropriate circuit court authorizing the district court to consider his application.
The United States Court of Appeals for the Fourth Circuit has set forth instructions for the filing of a motion to obtain the aforementioned authorization order. The procedural requirements and deadlines for filing the motion are extensive. The Clerk shall provide a packet of instructions published by the Fourth Circuit which addresses the comprehensive procedure to be followed should Petitioner wish to seek authorization to file a successive § 2255 motion with the appellate court. It is to be emphasized that Petitioner must file the motion with the Fourth Circuit and obtain authorization to file his successive petition before this court may examine his claims.
In addition to the above analysis, the issuance of a certificate of appealability (COA) must be considered. When a district court dismisses a habeas petition solely on procedural grounds, a COA will not issue unless the petitioner can demonstrate both "(1) `that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right' and (2) `that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.'"
Accordingly, the Court will dismiss Defendant's pending motion without prejudice and will not issue a certificate of appealability. A separate order will issue.