Opinion
NO. 4:11-CR-98-FL-1
11-08-2019
UNITED STATES OF AMERICA v. DONTRESZ HILL, Defendant.
ORDER
This matter is before the court on defendant's motion for relief from judgment by correcting pre-sentence report (DE 70). Upon careful review of the motion and the record in this case, the court has determined that defendant's motion must be recharacterized as a successive petition attacking defendant's conviction and sentence, and thus it must be dismissed for lack of jurisdiction. See 28 U.S.C. § 2255(h); Gonzalez v. Crosby, 545 U.S. 524, 532 (2005); United States v. Winestock, 340 F.3d 200, 204-05 (4th Cir. 2003).
Before defendant can file a successive § 2255 application in the district court, he must "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) (emphasis added). A successive petition "must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain" either "newly discovered evidence . . . or 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) (emphasis added).
In addition, contrary to defendant's suggestion, the law does not provide the court with a basis to make changes in defendant's pre-sentence report under the circumstances of this case. See United States v. Vanderhorst, 927 F.3d 824, 827 (4th Cir. 2019) (contrasting a district court's jurisdiction to correct what is "purely a clerical error in a judgment, order, or other part of the record—like . . . scrivener's or recording errors" with "judicial and substantive errors"). While defendant suggests that the court removed or should remove reference to a firearm in his pre-sentence report, the court expressly imposed an enhancement at sentencing based upon possession of a dangerous weapon. See Sent. Tr. (DE 39) at 23. Therefore correction of the pre-sentence report at this juncture is not warranted.
In sum, although the court commends defendant for his post-judgment rehabilitation efforts, the court lacks jurisdiction to grant relief from judgment on this basis.
Accordingly, the instant motion is DISMISSED.
SO ORDERED, this the 8th day of November, 2019.
/s/_________
LOUISE W. FLANAGAN
United States District Judge