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Hamrick v. United States

United States District Court, N.D. West Virginia, Wheeling

October 11, 2019

RODNEY CURTIS HAMRICK, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          STAMP, JUDGE

          REPORT AND RECOMMENDATION

          JAMES P. MAZZONE, UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         On October 10, 2019, Rodney Curtis Hamrick (“Petitioner”), proceeding pro se, filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (Civil Action No. 5:19cv289, ECF No. 1; Criminal Action No. 5:91cr56, ECF No. 104). The undersigned now issues this Report and Recommendation on the Petitioner's motion without requiring the Government to respond and without holding an evidentiary hearing. For the reasons stated below, the undersigned recommends that the District Judge deny and dismiss the Petitioner's motion.

         II. FACTS

         On May 22, 1991, an eight-count Indictment was returned in the Northern District of West Virginia charging Petitioner with violations of 26 U.S.C. § 5861(f), (d), (e), Manufacture, Possession, and Transferring of a Firearm (Counts One, Two and Three); a violation of 18 U.S.C. § 1760, Mailing of Injurious Material (Count Four); a Violation of 18 U.S.C. § 1114, Attempt to Kill the United States Attorney for the Northern District of West Virginia (Count Five); violations of 18 U.S.C. § 924(c), Use of a Firearm During and in Relation to a Crime of Violence (Counts Six and Eight); and a Violation of 18 U.S.C. § 111, Assault with a Dangerous Weapon, on the United States Attorney in the performance of his duties (Count Seven). On October 25, 1991, Petitioner was found guilty of all counts of the Indictment following a jury trial.

         The Court sentenced Petitioner to 210 months on Counts 4 and 5. He was also sentenced to 120 months for counts 1, 2, 3, and 7 to run concurrently with each other. The concurrent 120 month sentences were to run concurrently with the 210 month sentence for counts 4 and 5. Finally, Petitioner was sentence to 360 months on counts 6 and 8, that sentence to run consecutively to all the other sentence, for an effective sentence of 570 months.

         Petitioner appealed to the United States Court of Appeals for the Fourth Circuit, which affirmed his conviction on January 6, 1995 after rehearing en banc. Petitioner's writ of certiorari was denied by the United States Supreme Court on October 2, 1995.

         On July 16, 1999, Petitioner, pro se, filed a motion to vacate, set aside, or correct a sentence by a person in federal custody pursuant to 28 U.S.C. § 2255. On November 5, 1999, Magistrate Judge Seibert filed a report recommending that Petitioner's motion to vacate be denied as time-barred. On September 13, 2001, the Court found there was no basis for tolling the period of limitations and denied Petitioner's motion to vacate as time barred. Petitioner filed a Notice of Appeal on October 10, 2001. On March 7, 2002, the Fourth Circuit denied Petitioner a Certificate of Appealability and dismissed his appeal.

         On March 16, 2016, the Fourth Circuit denied Petitioner's motion for authorization to file a successive application for relief.

         In his current § 2255 Motion, the Petitioner alleges a “violation of the twin constitutional pillars of due process and separation of powers.” By way of explanation, Petitioner maintains that he was convicted and sentenced under 18 U.S.C. § 924(c), a statute that he maintains is unconstitutionally vague because it provides no reliable way to determine which offenses qualify as crimes of violence. Petitioner relies on the decision in United States v. Davis, 139 S.Ct. 2319 (2019).

         III. ANALYSIS

         Regarding a second or successive federal habeas corpus motion, 28 U.S.C. § 2255(h) states:

A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court ...

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