United States v. McKinnon ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-7192
HAROLD GREEN MCKINNON,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Fayetteville.
W. Earl Britt, Senior District Judge.
(CR-91-56-BR, CA-99-462-5-BR)
Submitted: December 7, 1999
Decided: December 28, 1999
Before MURNAGHAN, NIEMEYER, and WILLIAMS,
Circuit Judges.
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Vacated and remanded by unpublished per curiam opinion.
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COUNSEL
Harold Green McKinnon, Appellant Pro Se. John Eric Evenson, II,
Assistant United States Attorney, Raleigh, North Carolina, for Appel-
lee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Harold Green McKinnon seeks to appeal the district court's orders
dismissing his 28 U.S.C.A. § 2255 (West Supp. 1999) motion without
prejudice and denying his motion for reconsideration. The district
court dismissed the § 2255 motion for failure to receive authorization
from this court to file a second or successive motion, as required by
28 U.S.C.A. § 2244 (West Supp. 1999). McKinnon filed his first
§ 2255 motion on May 16, 1996, challenging his drugs and firearm
convictions. The district court granted McKinnon's§ 2255 motion in
part, vacated his 18 U.S.C.A. § 924(c) (West Supp. 1999) conviction
in light of Bailey v. United States, 516 U.S. 137 (1995), and resen-
tenced him. On resentencing, the district court found that McKinnon
possessed a firearm in relation to the drug violations, and imposed a
sentencing enhancement pursuant to U.S. Sentencing Guidelines
Manual § 2D1.11(b)(1) (1997). McKinnon appealed the amended
judgment after resentencing and the portion of the district court's
order denying his other § 2255 claims. This court affirmed the district
court's orders.
McKinnon filed a second § 2255 motion on July 19, 1999, chal-
lenging the amended judgment after resentencing. He alleged that he
received ineffective assistance of counsel and that his due process
rights were violated because he was resentenced based upon inaccu-
rate information. On July 21, 1999, the district court dismissed McK-
innon's motion without prejudice for failing to receive authorization
from this Court as required by 28 U.S.C.A. § 2244. McKinnon filed
a motion for reconsideration, arguing that he did not need to file a
motion for authorization because he was only challenging the
amended sentence, and cited this court's recent decision in In re
Taylor, 171 F.3d 185 (4th Cir. 1999). The district court denied the
motion by margin order. McKinnon noted a timely appeal of the
orders dismissing his § 2255 motion and motion for reconsideration.
Under the AEDPA, a "second or successive"§ 2255 motion may
not be filed in the district court unless the movant has received autho-
rization from the Court of Appeals after filing a§ 2244 motion. In
Taylor, this court held that a § 2255 motion is not "second or succes-
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sive" within the meaning of the AEDPA if the movant "expressly
seeks to raise only those issues that originated at the time of his resen-
tencing, after his first § 2255 petition has been granted. Thus, it is [the
movant's] first opportunity to assert new issues which arose during
his resentencing hearing." Taylor, 171 F.3d at 187-88. Therefore,
when a movant seeks to vacate an amended sentence on grounds that
arose during resentencing, the § 2255 may be filed directly in the dis-
trict court without authorization from this court. See id.
Therefore, under Taylor, the second § 2255 motion that McKinnon
seeks to file in the district court is not successive. The district court
erred in dismissing the § 2255 motion for failure to receive authoriza-
tion from this court to file a second or successive motion. Likewise,
the district court erred in denying McKinnon's motion to reconsider
the dismissal. We grant a certificate of appealability and remand the
case to the district court to be filed in accordance with Taylor.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
VACATED AND REMANDED
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