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Malcolm Carry v. Francisco Quintana

February 1, 2011

MALCOLM CARRY, PETITIONER,
v.
FRANCISCO QUINTANA,
WARDEN, RESPONDENT.



MEMORANDUM AND ORDER:

(1) DISMISSING SUCCESSIVE 28 U.S.C. § 2255 MOTION ERRONEOUSLY STYLED AS 28 U.S.C. § 2241 PETITION; AND (2) DENYING CERTIFICATE OF APPEALABILITY

I.

INTRODUCTION AND SUMMARY On January 7, 2011, petitioner Malcom Carry ("Petitioner"), a federal prisoner*fn1 proceeding pro se, filed a document styled as a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 (the "Petition/Motion"), challenging his criminal conviction and sentence in the United States District Court for the Eastern District of North Carolina. This Court has screened the Petition/Motion pursuant to Central District Local Rule 72-3.2. In reality, the Petition/Motion is nothing more than a disguised successive motion pursuant to 28 U.S.C. § 2255, which Petitioner is attempting to file in the wake of the Eastern District of North Carolina's denial of his first § 2255 motion filed in that court. As such, the Petition/Motion must be dismissed without prejudice to Petitioner seeking permission to file a successive § 2255 motion from the Fourth Circuit Court of Appeals.

II.

PROCEDURAL HISTORY Petitioner was convicted on his guilty plea in the U.S. District Court for the Eastern District of North Carolina on the following counts:

(1) conspiracy to commit armed robbery (18 U.S.C. § 371);

(2) interference with commerce by robbery and aiding and abetting (18 U.S.C. § 1951);

(3) brandishing and discharging a firearm during and in relation to a crime of violence and aiding and abetting (18 U.S.C. §§ 2, 924(c)(1)(A)(iii)); and

(4) carjacking (18 U.S.C. § 2119). (Pet./Mot. at 2). See also United States v. Carry, E.D. N. Carolina, Case No. 5:04-cr-00167-BO-1, Judgment [Docket No. 89] ("Criminal Judgment"), at 1-2; U.S. v. Carry, 204 Fed.Appx. 216, 216 (4th Cir. 2006) (per curiam).

He was sentenced to a total of 308 months in prison. (Pet./Mot. at 2.) Petitioner appealed, and his conviction was affirmed on November 6, 2006. (Pet./Mot. at 2.) See also U.S. v. Carry, 204 Fed.Appx. at 216.

Approximately a year later, on November 15, 2007, Petitioner filed a pro se motion pursuant to § 2255 to vacate, set aside, or correct his federal sentence and filed a supporting brief a few days later. (See U.S. District Court, Eastern District of North Carolina, Case No. 5:04-cr-00167-BO-1, Docket Nos. 119, 121.) Petitioner had appointed counsel at the time he filed the motion, but prepared and filed the motion on his own behalf. Because Petitioner alleged ineffective assistance of his appointed counsel in his pro se motion, counsel made a motion to withdraw, which the court granted. (See id., Docket Nos. 122, 128.) The court subsequently appointed new counsel to represent Petitioner. (See id., Docket No. 128.) His newly-appointed counsel filed a reply brief in support of the motion and represented Petitioner at the evidentiary hearing on the motion. (See id., Docket Nos. 133, 154.)

After holding the evidentiary hearing, the North Carolina district court denied it. (Pet./Mot. at 4.) Petitioner appealed, but the United States Court of Appeals for the Fourth Circuit dismissed the appeal on May 13, 2010, because Petitioner failed to make a substantial showing of the denial of a constitutional right, a prerequisite for the issuance of a certificate of appealability. See United States v. Carry, 378 Fed.Appx. 256, 256 (4th Cir. 2010) (per curiam).

This federal Petition/Motion ...


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