The opinion of the court was delivered by: Hillman, District Judge
This matter comes before the Court upon the motion of pro se petitioner, John Eric Hughes ("Hughes") to alter or amend the judgment of this Court with respect to this Court's Opinion and Order entered on March 9, 2010, dismissing Hughes' petition for a writ of habeas corpus under 28 U.S.C. § 2241, for lack of jurisdiction because it is a second or successive motion under 28 U.S.C. § 2255 challenging petitioner's sentence. (Docket entry nos. 4 and 5). Hughes submitted this application March 30, 2010. (Docket Entry No. 6).
This motion is decided without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons stated below, the motion will be denied.
In his initial habeas petition before this Court, filed on or about August 25, 2009, Hughes challenged the Bureau of Prison's ("BOP") "affirmative duty not to detain him past the constitutionally authorized prescribed statutory maximum sentence by verifying the validity of his judgment and commitment order." Hughes argued that there has been an intervening change in the law, namely, the "Crack Amendment 706," which amends U.S. Sentencing Guidelines ("U.S.S.G.") § 2D1.1 to allow for a downward departure on crack cocaine offense to ameliorate the crack-powder disparity in sentencing, and purportedly was to apply retroactively.*fn1
Hughes raised the very same or similar arguments in his earlier applications for relief before various courts. He first filed a direct appeal from his conviction and sentence before the United States Court of Appeals for the Fourth Circuit, claiming that (1) 21 U.S.C. § 841 was unconstitutional; (2) the type and quantity of drugs are elements to be charged in an indictment and proved to a jury; (3) the trial court erred in disallowing evidence of the different penalties for cocaine base and powder; and (4) petitioner should be allowed to challenge the authenticity of a tape recording and it was ineffective assistance of trial counsel for not doing so. The Fourth Circuit affirmed the conviction and sentence on or about August 9, 2001. (Pet., ¶ 9(a)). The Supreme Court of the United States denied certiorari on or about February 26, 2002. Hughes raised the very same arguments in his first motion to vacate his sentence under 28 U.S.C. § 2255, before the trial court in the United States District Court for the Eastern District of Virginia.
After Hughes' first § 2255 motion was denied on May 16, 2003, Hughes promptly filed a motion for reconsideration, which was denied on August 11, 2003. Hughes appealed from the district court's rulings, and on May 4, 2004, the Fourth Circuit denied a certificate of appealability and dismissed the appeal. See Hughes v. United States, No. 03-7626, 96 Fed. Appx. 148, 2004 WL 962752 *1 (4th Cir. May 4, 2004).
Thereafter, on or about March 8, 2005, Hughes filed a motion under Rule 60(b), to "Correct a Constitutional and Jurisdictional defect and fraud upon the Court." On April 18, 2005, this motion was converted to a § 2255 motion and dismissed for lack of subject matter jurisdiction because Hughes did not first seek approval from the Fourth Circuit to file a second or successive § 2255 motion. Hughes appealed from this ruling, and on October 7, 2005, the Fourth Circuit again denied to issue a certificate of appealability and dismissed the appeal. The Fourth Circuit also denied Hughes' motions for appointment of counsel and for an evidentiary hearing. See United States v. Hughes, (No. CR-00-4; CA 05-278-3), 144 Fed. Appx. 996, 2005 WL 2475752 (4th Cir. Oct. 7, 2005). The Fourth Circuit denied petitioner's application for a rehearing on or about January 31, 2006. The Supreme Court of the United States denied certiorari on May 17, 2006.
Hughes then filed a motion for "Retroactive Application of Sentencing Guidelines to Crack Cocaine Offense," pursuant to 18 U.S.C. § 3582, on or about March 6, 2008.*fn2 The Honorable James R. Spencer, U.S.D.J., denied the motion on August 1, 2008. (Pet., ¶ 12(b)). Hughes moved for reconsideration of the court's Order, which was denied on October 16, 2008. He also filed an appeal. On March 5, 2009, the Fourth Circuit affirmed Judge Spencer's decision. See United States v. Hughes, (No. 08-7611), 314 Fed. Appx. 626, 2009 WL 550304 (4th Cir. March 5, 2009).
On or about January 21, 2009, Hughes filed a motion to have the Probation Department correct an erroneous Pre-Sentence Investigation Report ("PSIR"). The trial court denied the motion on March 24, 2009. Hughes moved for reconsideration twice. The district court denied reconsideration both times, on August 31, 2009.
Then Hughes filed this § 2241 habeas petition, which this Court dismissed with prejudice on March 9, 2010. This Court stated:
Hughes has presented all of the arguments raised in this habeas petition on direct appeal, in his several motions under § 2255 motions, as well as his other applications for post-conviction relief, such as his § 3582(c)(2) motion, without success. Consequently, this petition is nothing more than another attempt by Hughes to relitigate matters already decided by the sentencing court and the United States Court of Appeals for the Fourth Circuit. In other words, Hughes is simply seeking to challenge his ...