IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION CIVIL CASE NO. 1:20-cv-00248-MR (CRIMINAL CASE NO. 1:17-cr-00077-MR-WCM-1)

CHARLES WILLIAM MEMSEN, ) ) Petitioner, ) ) vs. ) ) UNITED STATES OF AMERICA, ) ORDER ) Respondent. ) _______________________________ )

THIS MATTER is before the Court on pro se Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence pursuant to

[Doc. 1]. I. BACKGROUND Petitioner pleaded guilty without the benefit of a plea agreement to one count of possession of a firearm and ammunition by a convicted felon, in violation of

(g)(1) (Count One), and one count of possession of a stolen firearm firearm and ammunition, in violation of

(j) (Count Two). [1:17-cr-00077-MR-1 (CR) Docs. 1, 30]. In a Judgment entered on April 27, 2018, the Court sentenced Petitioner to a term of imprisonment of 72 months. [CR Doc. 43]. Petitioner did not file a direct appeal.

Petitioner filed a timely § 2255 Motion to Vacate, raising claims of ineffective assistance of counsel. [Civil Case No. 1:19-cv-00104-MR, Doc. 1]. The Court dismissed and denied the § 2255 Motion to Vacate on the

merits. Memsen v. United States,

(W.D.N.C. March 31, 2020). Petitioner did not file an appeal. Petitioner has now filed the instant § 2255 Motion to Vacate in which he seeks relief pursuant to Rehaif v. United States,

(2019).

II. STANDARD OF REVIEW A federal prisoner claiming that his “sentence was imposed in violation of the Constitution or the laws of the United States, or that the court was

without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.”

(a).

Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to promptly examine motions to vacate, along with “any attached exhibits and the record of prior proceedings ...” in order to

determine whether the petitioner is entitled to any relief on the claims set 2 forth therein. After examining the record in this matter, the Court finds that the Petitioner’s motion can be resolved without an evidentiary hearing based

on the record and governing case law. See Raines v. United States,

(4th Cir. 1970). III. DISCUSSION

As a preliminary matter, the § 2255 Motion to Vacate is insufficient to proceed because it was not signed under penalty of perjury. See

, foll. Rule 2(b)(5). There would be no purpose in affording Petitioner with the opportunity to correct this defect, however, because the Motion to

Vacate is subject to dismissal for lack of jurisdiction. When an initial motion pursuant to § 2255 has been adjudicated on the merits, a second or successive motion under the statute must be certified by

the court of appeals before it may be filed with this Court.

(h). To certify a second or successive § 2255 motion for filing with this Court, the court of appeals must find that the motion contains either: “(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

(h). Without such pre-filing authorization, the district court lacks jurisdiction to consider a successive application. See United States v.

Winestock,

(4th Cir. 2003), abrogated in part on other grounds by United States v. McRae,

(4th Cir. 2015). A second- in-time § 2255 motion will not, however, be successive when “the facts relied

on by the movant seeking resentencing did not exist when numerically first motion was filed and adjudicated.” United States v. Hairston,

(4th Cir. 2014). The Petitioner does not provide any indication that he has received

authorization from the Fourth Circuit Court of Appeals to file this motion or that his claim was not previously ripe. Instead, he argues that the present motion is not a second or successive motion under § 2255(h) because Rehaif

is a new, retroactively-applicable Supreme Court case that rendered his guilty plea unconstitutional. This claim falls squarely within § 2255(h)(2) and Petitioner must receive authorization from the Fourth Circuit before presenting the claim to this Court. Accordingly, the Petitioner’s motion is an

unauthorized successive § 2255 Motion to Vacate and it will be dismissed for lack of jurisdiction.

4 IV. CONCLUSION For the foregoing reasons, Petitioner’s Motion to Vacate, Set Aside, or

Correct Sentence pursuant to

[Doc. 1] is dismissed for lack of jurisdiction. The Court further finds that the Petitioner has not made a substantial

showing of a denial of a constitutional right. Accordingly, pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, the Court declines to issue a certificate of appealability.

(c)(2); Miller-El v. Cockrell,

(2003) (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,

(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). ORDER

IT IS, THEREFORE, ORDERED that Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence pursuant to

[Doc. 1] is DISMISSED

5 IT IS FURTHER ORDERED that this Court declines to issue a certificate of appealability. IT IS SO ORDERED.

Signed: September 21, 2020

Martifi Reidinger Le, Chief United States District Judge lly