United States District Court, S.D. West Virginia, Charleston Division
PROPOSED FINDINGS AND RECOMMENDATIONS
A. EIFERT UNITED STATES MAGISTRATE JUDGE
before the Court is Movant Michael Anthony McKinzie's
Motion under 28 U.S.C. § 2255 to Vacate, Set Aside or
Correct a Sentence by a Person in Federal Custody. (ECF No.
175). This matter is assigned to the Honorable Joseph R.
Goodwin, United States District Judge, and by standing order
has been referred to the undersigned United States Magistrate
Judge for the submission of proposed findings of fact and
recommendations for disposition pursuant to 28 U.S.C. §
636(b)(1)(B). For the reasons that follow, the undersigned
RECOMMENDS that the presiding district judge DENY
Movant's motion, DISMISS this civil action, with
prejudice, and remove it from the docket of the Court.
Factual and Procedural
December 4, 1995, Movant was convicted in this court on four
counts of drug trafficking charges under 21 U.S.C.
§§ 841(a)(1), 846 and was sentenced to 262 months
of imprisonment followed by five years of supervised release.
(ECF No. 64). Movant filed a direct appeal, which resulted in
the United States Court of Appeals for the Fourth Circuit
(“Fourth Circuit”) affirming his conviction and
sentence on October 16, 1996. (ECF No. 81). Movant filed two
unsuccessful motions under § 2255 and then twice sought
authorization from the Fourth Circuit to file a second or
successive § 2255 motion; both motions were denied. (ECF
Nos. 104, 116, 121, 130). Nevertheless, Movant filed another
§ 2255 motion in 2011, which was likewise unsuccessful.
(ECF Nos. 151, 152, 157). Undeterred, Movant filed a motion
to reduce his sentence under 18 U.S.C. § 3582(c)(2).
That motion was denied. He subsequently filed a second motion
to reduce his sentence in December 2014 based upon a
reduction in § 2D1.1 of the United States Sentencing
Guidelines (the “Guidelines”). (ECF Nos. 162,
course of reviewing the latter § 3582(c)(2) motion, the
court noted that Movant had been released from custody on
February 20, 2015, which rendered moot his request for a
shortened sentence. (ECF No. 173). As a result, the court
denied the motion insofar as it sought relief under §
3582(c)(2). However, to the extent that Movant was
challenging his characterization as a career offender, the
court directed the clerk to open a separate action and docket
the matter as a motion under § 2255. (ECF Nos. 173,
174). Consequently, the instant matter was opened and the
pending § 2255 motion was filed on Movant's behalf.
(ECF No. 175).
present § 2255 motion, Movant contends that he should
not have been sentenced as a career offender under §
4B1.1 of the United States Sentencing Guidelines because his
1985 conviction for interstate travel in aid of a
racketeering enterprise involving distribution of cocaine
base, a violation of 18 U.S.C. § 1952(a)(3), did not
qualify as a controlled substance offense. (ECF Nos. 175, 187
at 7-8). Under the guidelines in effect at the relevant time,
a defendant could be subjected to more severe punishment as a
“career offender” if the person were convicted of
a controlled substance violation or a crime of violence and
had two prior felony convictions for crimes of violence or
controlled substance offenses. U.S.S.G. § 4B1.1 (1995).
The term “controlled substance offense” was
defined as “an offense under a federal or state law
prohibiting the manufacture, import, export, distribution, or
dispensing of a controlled substance (or a counterfeit
substance) or the possession of a controlled substance (or a
counterfeit substance) with intent to manufacture, import,
export, distribute, or dispense.” Id. at
§ 4B1.2(2). Movant argues that because he only pled
guilty to what he describes as a “Travel Count, ”
that conviction should not have counted as a controlled
substance offense triggering application of the career
offender guidelines. (ECF No. 175 at 2).
response to the above arguments, the United States contends
that Movant's motion should be dismissed for several
reasons: (1) it is untimely, (2) Movant has not received
authorization from the Fourth Circuit to file a second or
successive § 2255 motion, and (3) Movant's predicate
conviction is indeed a “controlled substance
offense” and qualified him for a career offender
sentence enhancement. (ECF No. 187).
is well-settled that the district court lacks jurisdiction to
consider a second or successive motion filed under 28 U.S.C.
§ 2255 unless the motion has been certified in advance
by a panel of the appropriate circuit court of appeals. 28
U.S.C. § 2255(h); see also United States v.
Winestock, 340 F.3d 200, 205 (4th Cir. 2003). In this
case, Movant previously filed several unsuccessful §
2255 motions regarding the criminal conviction and sentence
at issue and was twice denied authorization to file a second
or successive § 2255 motion. (ECF Nos. 104, 116, 121,
130, 151). Independent research reveals no evidence that
Movant has sought, much less been granted, authorization from
the Fourth Circuit to file the present second or successive
§ 2255 motion. Therefore, the undersigned FINDS that
this court lacks jurisdiction to consider the motion.
the court may exercise its authority under 28 U.S.C. §
1631 to recharacterize the petition as a motion for
pre-filing authorization, and transfer it to the Fourth
Circuit for consideration. Title 28 U.S.C. § 1631
provides as follows:
Whenever a civil action is filed in a court ... and that
court finds that there is a want of jurisdiction, the court
shall, if it is in the interest of justice, transfer such
action ... to any other such court in which the action ...
could have been brought at the time it was filed ... and the
action ... shall proceed as if it had been filed in ... the
court to which it is transferred on the date upon which it
was actually filed in ... the court from which it is
28 U.S.C. § 1631. The Fourth Circuit has declined to
impose “a blanket policy of mandatory transfer of
unauthorized successive petitions to th[e] court for
consideration as [pre-filing authorization] motions.”
Jones v. Braxton, 392 F.3d 683, 691 (4th Cir. 2004).
Instead, district courts retain discretion to determine
whether the transfer of an unauthorized successive petition
is “in the interest of justice.” Id.
Thus, in the Fourth Circuit, a district court may dismiss,
rather than transfer, a petition that is frivolous or
time-barred. United States v. McNeill, 523 Fed.Appx.
979, 984 (4th Cir. 2013) (citing Phillips v. Seiter,
173 F.3d 609, 610-11 (7th Cir. 1999) (stating that the
transfer of a frivolous, time-barred case is a waste of
judicial resources) and Galloway Farms, Inc. v. United
States, 834 F.2d 998, 1001 (Fed. Cir. 1987) (declining
to transfer claims under § 1631 that were frivolous)).
court of appeals to grant a movant's request to file a
successive § 2255 motion, the motion must contain:
(1) 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
factfinder would ...