NOT F OR FULL -TEXT PUB L I CATI ON File Na me: 13a0355n.06 No. 12-3404 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T

In re: DO N NEL LHAWKI NS, Movant. ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE N ORTHERN DI STRI CT OF OH I O

Be fore : MARTI

N and SUTTON , Circuit J udg es; HOOD , District J udg e. *

PER CURI AM. Don Nell Hawkins, a pro se fede ral p ri s o n er , s eeks this Court’s authorization to file a sec ond or succ essive 28 U.S.C. § 2255 motion t o vacate his sentence

. In 2007, Hawkins pleade d guilty to two counts of distributing coca ine base and one count of possession wi t h t h e intent to distribute coca ine base. He was sentenc ed to 240 months of imprisonment. Thi s Court aff irmed his convictions and the United States Supreme Court denied

cer tiorari. In J anuar

y 2009, Hawkins filed a § 2255 motion cha lleng ing his c onvictions on sever al g rounds. The district court denied the motion, and this Court denied Hawkins a cer tific ate of appea lability

. In 2010, Hawkins filed a reque st for this Court’s authorization to file a second or succe ssive § 2255 motion, arguing that his c ounsel provided ineffe ctive assistance and that he was denied his rig hts under the Speedy Trial Act, 18 U.S.C. § 3161. He alleg ed that his contentions wer e supported by United States v. Benitez , 34 F.3d 1489, 1494–95 (9th C i r. 1994), which he had just rec ently

The Honora

ble J oseph M

. Ho od, United States District J udg e for the Easter n District of * Kentucky , sitti ngby

designation.No. 12-3404 - 2 - discovere d. We denied the motion for failure to meet the require ments for filing a succe ssive § 2255 motion. Hawkins then filed a motion to reope n his § 2255 motion, which the district court transfe rre d to this Court as a second o r s u cce ssive § 2255 motion filed without this Court’s authorization. Hawkins now move s this C ourt for a uthorization t o file a se cond or suc cessive § 2255 motion. Be fore filing a second or succe ssive motion to vacate in the district court, a fede ral prisoner must obtain permission from this Court as provided in 28 U.S.C. §§ 2244, 2255(h); In re Clemmons , 259 F.3d 489, 491 (6th Cir. 2001). Permission will be g rante d only upon a prima fac ie showing that the motion contains a claim based on: “(1) newly discovere d evidenc e that, if prove n and viewe d in light of the evidenc e as a whole, would be sufficie nt to establish by clea r and convincing evidenc e that no rea sonable fa ctfinder would have f

ound the movant guilty

of the off ense; or ( 2) a new

rule of constitutional law, made retroa ctive to case s on collater al revie w by the Supreme Court, that was previously unavailable .” 28 U.S.C. § 2255(h); see also 28 U.S.C. § 2244(b)( 3). Any claim that was prese nted in a prior § 2255 motion must be dismiss ed. Charles v. Chandler , 180 F.3d 753, 758 (6th Cir. 1999). Hawkins proposes to argue that 1) his trial counsel was ineffe ctive, and 2) his plea ag ree ment

was void beca

use he enter ed into the a gr e e me nt b a s e d o n the g overnme nt’s alleg ed misrepre sentation that the delay in his prosec ution did not violate the Speedy Trial Act. He c oncede s that he alre ady has raised the ineffe ctive assistance of counsel claim, but he contends that he is entitl ed t o relief beca use it is based on a “new equity rule” announce d in Martinez v. Ryan , 132 S. Ct. 1309 (2012). He also contends that his c laims w ere not se cond or succe ssive and did not constitute an “abuse of the writ” beca

use he did not lear

n of the g overnme nt’s misrepre sentation of the law conce rning his rig ht to a speedy

trial until 2010, when he lea rned of the Benitez

case .No. 12-3404 - 3 - To the extent that Hawkins alre ady raised his claims in his prior motion for authorization to file a second or succe ssive § 2255 motion, th ey are dismiss ed. See Charles , 180 F.3d at 758. Fur thermore , neither of

Hawkins’ c laims meets the re quirements of § 2255( h). Hawkins’s motion for authorization to file a second or succe ssive § 2255 motion is denied. His motions t o amend a

nd supplement his pleading s are g rante d.