Petition for Writ of Certiorari — Devon Raymus Sturdivant, Petitioner v. United States

Appeal: 17-6818

Filed: 08/29/2017

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 17-6818

UNITED STATES OF AMERICA,

Plaintiff Appellee,

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V.

DEVON RAYMUS STURDIVANT,

Defendant Appellant.

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Appeal from the United States District Court for the Western District of North Carolina,

at Charlotte. Robert J. Conrad, Jr., District Judge. (3:06-cr-00 194-RJC- 1)

Submitted: August 24, 201

Decided: August 29, 2017

Before GREGORY, Chief Judge, and SHEDD and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Devon Raymus Sturdivant, Appellant Pro Se. Amy Elizabeth Ray, Assistant United

States Attorney, Asheville, North Carolina; Gretchen C. F. Shappert, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Devon Raymus Sturdivant appeals the district court's order denying relief on his

18 U.S.C. § 3582(c)(2) (2012) motion. We have reviewed the record and find no

reversible error. Accordingly, we affirm for the reasons stated by the district court.

United States v. Sturdivant, No. 3:06-cr-00194-RJC-1 (W.D.N.C. June 2, 2017). We

dispense with oral argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would not aid the decisional

process.

AFFIRMED

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APPENDIX "A"

91

FILED: August 29, 2017

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 17-6818

(3 :06-cr-O0 194-RJC- 1)

UNITED STATES OF AMERICA

Plaintiff Appellee

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V.

DEVON RAYMUS STURDIVANT

Defendant Appellant

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JUDGMENT

In accordance with the decision of this court, the judgment of the district

court is affirmed.

This judgment shall take effect upon issuance of this court's mandate in

accordance with Fed. R. App. P. 41.

Is! PATRICIA S. CONNOR, CLERK

APPENDIX "B"

FILED: October 11, 2017

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 17-6818

(3 :06-cr-0O 194-RJC- 1)

UNITED STATES OF AMERICA

Plaintiff Appellee

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V.

DEVON RAYMUS STURDIVANT

Defendant Appellant

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ORDER

The court denies the petition for rehearing and rehearing en banc. No judge

requested a poll under Fed. R. App. P. 35 on the petition for rehearing en banc.

Entered at the direction of the panel: Chief Judge Gregory, Judge Shedd and

Judge Diaz.

For the Court

Is! Patricia S. Connor, Clerk

APPENDIX "C"

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

3 :06-CR-OO 194-RJC

USA

V.

DEVON RAYMUS STURDIVANT

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ORDER

THIS MATTER comes before the Court on the defendant's pro se Motion to Modify

Sentence, pursuant to 18 U.S.C. § 3582(c)(2). (Doc. No. 61).

Title 18, United States Code, Section 3582(c)(2) allows a court to reduce a sentence

based on a guideline range that has been subsequently lowered by the Sentencing Commission.

Here, Amendment 794 detailed by the defendant as affecting his sentence, (Doe. No. 61: Motion

at 1), is not listed by the Commission as being retroactively applicable, USSG §1131. 10(a)( 1),

(d). Thus, he is not entitled to relief.

IT IS, THEREFORE, ORDERED that the defendant's Motion to Modify Sentence,

(Doc. No. 61), is DENIED.

Signed: June 1, 2017

ab

Robert J. Conrad, Jr.

United States District Judge

Case 3:06-cr-00194-RJC Document 64 Filed 06/02/17 Page 1 of 1

-,

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

3:16-cv-00205-RJC

(3 :06-cr-00194-RJC- 1)

DEVON RAYMUS STURDIVANT,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

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ORDER

THIS MATTER is before the Court on an initial review of Petitioner's pro se Motion to

Vacate, Set Aside or Correct Sentence, filed pursuant to 28 U.S.C. § 2255. For the reasons that

follow, Petitioner's § 2255 motion will be dismissed as successive.

I.

BACKGROUND

Petitioner pleaded guilty pursuant to a plea agreement to one count of conspiracy to

possess with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), and one count of

possession of a firearm during and in relation to a drug trafficking crime, in violation of 18

U.S.C. § 924(c)(1). Petitioner was sentenced to a term of 262-months' imprisonment, and his

judgment was affirmed on appeal. United States v. Sturdivant, 319 F. App'x 234 (4th Cir. 2009)

(unpublished). After his appeal was affirmed, Petitioner filed a § 2255 motion to vacate which

was dismissed as untimely. Sturdivant v. United States, No. 3:11-cv-00161-RJC (W.D.N.C. May

17, 2011). Petitioner then filed a second § 2255 that was dismissed as successive. Sturdivant v.

United States, 3:12-cv-00496-RJC (W.D.N.C. Aug. 9,2012).

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Case 3:06-cr-00194-RJC Document 59 Filed 05/09/16 Page 1 of 3

Petitioner has now filed a third § 2255 motion in which he argues that he is entitled to

relief based on the Fourth Circuit's en banc opinion in United States v. Simmons, 649 F.3d 237

(4th Cir. 2011).

STANDARD OF REVIEW

Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, sentencing

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 is 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).

DISCUSSION

The Antiterrorism and Effective Death Penalty Act 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—

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

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).

Petitioner has not shown that he has obtained the necessary authorization from the Fourth

Circuit to file a successive petition. Accordingly, this third petition must be dismissed. See

Burton v. Stewart, 549 U.S. 147, 153 (2007) (failure of petitioner to obtain authorization to file a

second or successive petition deprived the district court of jurisdiction to consider the second or

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Case 3:06-cr-00194-RJC Document 59 Filed 05/09/16 Page 2 of 3

successive petition "in the first place."); United States v. Winestock, 340 F.3d 200, 205 (4th Cir.

2003).

IV. CONCLUSION

IT IS, THEREFORE, ORDERED that Petitioner's Section 2255 motion is

DISMISSED as successive. (Doc. No. 1).

IT IS FURTHER ORDERED that the Court declines to issue a certificate of

appealability as Petitioner has not made a substantial showing of the denial of a constitutional

right. See generally 28 U.S.C. § 2253(c)(2); see also Miller-El v. Cockrell, 537 U.S. 322, 336-38

(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") (citing

Slack v. McDaniel, 529 U.S. 473, 484-85 (2000)). Further, the Court finds that Petitioner has

failed to demonstrate that the dispositive procedural rulings are debatable. See Slack, supra. As a

result, the Court declines to issue a certificate of appealability. See Rule 11(a), Rules Governing

Section 2255 Proceedings for the United States District Courts, 28 U.S.C. § 2255.

The Clerk is directed to close this case.

SO ORDERED.

Signed: May 9, 2016

Robert J. Conrad, Jr.

United States District Judge

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Case 3:06-cr-00194-RJC Document 59 Filed 05/09/16 Page 3 of 3

United States District Court

Western District of North Carolina

Charlotte Division

Devon Raymus Sturdivant,

Petitioner(s),

VS.

USA,

Respondent(s).

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JUDGMENT IN CASE

3: 16-cv-00205-RJC

3: 06-cr-00 1 94-RJC

DECISION BY COURT. This action having come before the Court and a decision having been

rendered;

IT IS ORDERED AND ADJUDGED that Judgment is hereby entered in accordance with the

Court's May 9, 2016 Order.

May 9, 2016

f

Frank G. Johns, Clerk

United States District Court

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