United States v. Grandison , 85 F. App'x 320 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-6465
ANTHONY GRANDISON,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, Senior District Judge.
(CR-83-200-HM)
Submitted: August 29, 2003
Decided: December 31, 2003
Before WILKINSON, NIEMEYER, and WILLIAMS,
Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
Anthony Grandison, Appellant Pro Se. Juliet Ann Eurich, OFFICE
OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. GRANDISON
OPINION
PER CURIAM:
Anthony Grandison appeals the district court’s orders denying both
his motion filed pursuant to former Fed. R. Crim. P. 35(a) and his
motion for reconsideration. We construe Grandison’s appeal as a
request for authorization under 28 U.S.C. § 2244 (2000) to file a suc-
cessive 28 U.S.C. § 2255 (2000) motion. We deny authorization to
file a successive § 2255 motion. Because the district court was with-
out jurisdiction to enter its order, we vacate the order of the district
court and remand with instructions to dismiss.
Grandison and three others were convicted of conspiracy to violate
civil rights, 18 U.S.C. § 241, and witness tampering, 18 U.S.C.
§ 1512. The "charges grew out of the brutal murders of two motel
employees, one of whom . . . was in a position to identify Grandison
as someone who visited the motel in early November 1982. The testi-
mony . . . was significant to establish Grandison’s guilt in a federal
narcotics case . . . for which trial was pending on . . . the date of the
murders." United States v. Grandison, 780 F.2d 425, 428 (4th Cir.
1985). Grandison was sentenced to life in prison for conspiracy and
ten years for witness tampering. The sentences run consecutively.
In his Rule 35(a) motion, Grandison claims that his life sentence
violates the rule of Apprendi v. New Jersey, 530 U.S. 466 (2000),
because the indictment did not charge that the conspiracy resulted in
death and the judge, rather than the jury, found the causal connection
between the violation of civil rights and death that is required under
§ 241 to impose a life sentence. Grandison argues that this Apprendi
violation requires resentencing and imposition of a sentence not to
exceed ten years.
Grandison first argues that his Rule 35(a) motion is not an attempt
to collaterally attack his sentence, because motions brought under
Rule 35(a) are "made in the original case . . . a[s] part of the appellate
process from [the] original conviction rather than a collateral attack
on [the] sentence." United States v. Landrum, 93 F.3d 122, 125 (4th
Cir. 1996) (quoting United States v. Shillingford, 586 F.2d 372, 375
(5th Cir. 1978)). However, Landrum dealt only with a situation where
UNITED STATES v. GRANDISON 3
the prisoner had not yet filed a motion under § 2255. We do not
believe its rationale applies here, where Grandison’s direct appeal has
already concluded and two § 2255 motions have also been denied.
Instead, the motion Grandison filed in the district court is best charac-
terized as attempt to file a successive § 2255 motion.
Section 2244 requires that prisoners seek authorization with the cir-
cuit court before filing a successive § 2255 motion. 28 U.S.C.
§ 2244(b)(3) (2000). Without such authorization, the district court
lacks jurisdiction to hear the claims. United States v. Winestock, 340
F.3d 200 (4th Cir. 2003). Because the district court lacked jurisdiction
over the claim, we will construe Grandison’s appeal as a motion for
authorization, pursuant to § 2244(b)(3), to file a successive § 2255
motion. Winestock, 340 F.3d at 208. We may authorize the filing of
a successive § 2255 motion only if the prisoner makes a prima facie
showing that his claim relies on either the existence of a new rule of
constitutional law made retroactive to cases on collateral review by
the Supreme Court or newly discovered evidence that would prove by
clear and convincing evidence that no reasonable factfinder could
have found the individual guilty of the offense. 28 U.S.C. § 2255 ¶ 8
(2000). Because we have previously held that Apprendi claims cannot
be raised during collateral review, see United States v. Sanders, 247
F.3d 139 (4th Cir. 2001), and because Grandison does not allege the
existence of newly discovered evidence, Grandison fails to meet the
standard required for authorization under § 2244. We thus deny
Grandison the authorization to file a successive § 2255 motion and
deny his motion for appointment of counsel. We also vacate the order
of the district court and remand with instructions to dismiss the
motion. Winestock, 340 F.3d at 208.
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; AUTHORIZATION DENIED