USA v. Porter et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:14-CV-00373-RLV
(3:85-CR-00062-RLV-1)
WAYNER PORTER, )
)
Petitioner, )
)
v. )
) ORDER
UNITED STATES OF AMERICA, )
)
Respondent. )
)
THIS MATTER is before the Court on consideration of what the Court finds is a motion
to vacate, set aside or correct sentence, pursuant to 28 U.S.C. § 2255. For the reasons that follow,
the § 2255 motion will be dismissed as successive.
I. BACKGROUND
Petitioner was indicted in 1985 with 28 counts which included 5 counts of conspiracy in
violation of 21 U.S.C. § 846, one count of engaging in a continuing criminal enterprise (CCE), in
violation of 21 U.S.C. § 848, several counts of possession with intent to distribute controlled
substances, in violation of 21 U.S.C. § 841, the use of a communication facility in the
commission of a drug felony, in violation of 21 U.S.C. § 843, traveling in interstate commerce
with the intention of engaging in illegal drug activity, in violation of 18 U.S.C. § 1952, and
aiding and abetting. See United States v. Porter, 821 F.2d 968 (4th Cir.), cert. denied, 485 U.S.
934 (1988). Petitioner was convicted of several of the counts, including the CCE charge,
following a 10-day trial. The Court sentenced Petitioner to a term of 75-years on the CCE
conviction, and the Court ordered that the sentences of the remaining counts of conviction would
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run currently with the 75-year term for the CCE conviction. Petitioner filed an appeal to the
United States Court of Appeals for the Fourth Circuit. As is pertinent here, the Fourth Circuit
affirmed Petitioner’s CCE conviction and sentence and the Supreme Court denied further review.
What followed the conclusion of his direct appeal was a remarkable string of post-
conviction efforts that Petitioner filed in an effort to attack his criminal judgment. On June 30,
1988, Petitioner filed a motion pursuant to Rule 35 of the Federal Rules of Criminal Procedure
which the Court denied on October 11, 1988. On May 31, 1989, Petitioner filed a motion for
review of his sentence which the Court also denied. United States v. Porter, No. 3:85-cr-00063-
RDP (W.D.N.C. Aug. 10, 1989), aff’d, 898 F.2d 149 (4th Cir. 1990) (unpublished table
decision).
Petitioner filed a § 2255 motion to vacate in 1991, which the Court dismissed and the
Fourth Circuit affirmed for the reasons stated by the district court. Porter v. United States, No.
3:91-cv-207-RLV (W.D.N.C. July 7, 1993), dismissed, 19 F.3d 13 (4th Cir. 1994) (unpublished)
(finding that Petitioner’s appeal was without merit).
On November 5, 1998, the Fourth Circuit denied Petitioner’s motion for authorization to
file a successive § 2255 petition pursuant to 28 U.S.C. § 2244, and denied his motion
reconsideration of the order. Nevertheless, Petitioner filed another § 2255 motion in 2001 which
the Court dismissed as an unauthorized, successive § 2255 motion. Porter v. United States, No.
3:01-cv-577-RLV (W.D.N.C. Oct. 24, 2001). The Fourth Circuit dismissed Petitioner’s appeal
and denied a certificate of appealability. United States v. Porter, 37 F. App’x 707 (4th Cir. 2002)
(unpublished).
In 2004, Petitioner filed a Rule 35 motion to correct his sentence which the Court
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construed as a § 2255 motion to vacate and it was dismissed as successive. Porter v. United
States, No. 3:05-cv-306-RLV (W.D.N.C. June 9, 2005). In the Order of dismissal, the Court
observed that no less than two of Petitioner’s prior motions had directly challenged his CCE
conviction on double jeopardy grounds and the Court noted that this claim had been soundly
rejected on the merits.
On appeal from this Order, the Circuit Court noted that Petitioner was convicted in 1985
of the CCE offense. In rejecting Petitioner’s ongoing argument that his CCE conviction violated
the Double Jeopardy Clause, and in affirming the dismissal of his Rule 35 motion, the Court
noted that “Rule 35(a) is limited to claims that a sentence itself is illegal and may not be used to
further a claim that the conviction underlying the sentence is invalid.” United States v. Porter,
163 F. App’x 242 (4th Cir. 2006) (unpublished) (citing United States v. Little, 392 F.3d 671, 678
(4th Cir. 2004) (denying a defendant’s effort to attack conviction on double jeopardy grounds
under former Rule 35(a)). The Court also observed that Petitioner’s double jeopardy argument
attacking his CCE conviction was denied by the district court in his 2001 Section 2255
proceeding.
Next, Petitioner filed the present “motion to vacate/correct illegal sentence pursuant to
Fed. R. Crim. P. 35(a) . . .” Petitioner again asserts that his conviction and sentence for the CCE
charge were illegal based on his previous conviction for conspiracy in the Middle District of
Florida. As noted, Petitioner’s Double Jeopardy argument has been repeatedly rejected and those
determinations have been upheld on appeal.
II. STANDARD OF REVIEW
Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, sentencing
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courts are directed to promptly examine motions to vacate, along with “any attached exhibits and
the record of prior proceedings” in order to determine whether a petitioner may be entitled to any
relief. The Court has considered the record in this matter and applicable authority and concludes
that this matter can be resolved without an evidentiary hearing. See Raines v. United States, 423
F.2d 526, 529 (4th Cir. 1970).
III. DISCUSSION
The Antiterrorism and Effective Death Penalty Act (AEDPA) provides, in relevant part,
that “[a] second or successive motion [under Section 2255] must be certified as provided in
Section 2244 by a panel of the appropriate court of appeals to 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 have found the movant guilty of the
offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable.
28 U.S.C. § 2255(h).
The Court finds that the present motion is yet another § 2255 motion despite Petitioner’s
contention that the motion should be treated as a Rule 35 motion. The Court finds that Petitioner
has provided no evidence that he has obtained the necessary authorization from the Fourth
Circuit to file the present, successive § 2255 motion. The Court will therefore dismiss the § 2255
motion without prejudice. See In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997) (en banc); United
States v. Winestock, 340 F.3d 200, 205 (4th Cir. 2003).
IV. CONCLUSION
IT IS, THEREFORE, ORDERED that Petitioner’s Section 2255 motion to vacate is
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DISMISSED without prejudice as successive. (Doc. No. 1).
IT IS FURTHER ORDERED that Petitioner’s motion for adjudication is DISMISSED
as moot, and his motion to amend is DENIED. (Doc. No. 2).
IT IS FURTHER ORDERED that the Government’s motion to dismiss is GRANTED.
(Doc. No. 3).
IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing
Section 2255 Cases, this Court declines to issue a certificate of appealability as Petitioner has not
made a substantial showing of a denial of a constitutional right. 28 U.S.C. § 2253(c)(2); Miller-
El v. Cockrell, 537 U.S. 322, 336-38 (2003) (stating that in order to satisfy § 2253(c), a
petitioner must demonstrate that reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong); Slack v. McDaniel, 529 U.S. 474, 484 (2000)
(holding that when relief is denied on procedural grounds, a petitioner must establish both that
the correctness of the dispositive procedural ruling is debatable and that the petition states a
debatably valid claim of the denial of a constitutional right).
The Clerk is respectfully directed to close this civil case.
IT IS SO ORDERED.
Signed: August 26, 2014
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