L. Patrick Auld United States Magistrate Judge
RECOMMENDATION AND ORDER OF UNITED STATES MAGISTRATE JUDGE
L. Patrick Auld United States Magistrate Judge
Petitioner, a federal prisoner, submitted a document styled as a motion seeking a downward departure pursuant to United States v. Smith, 27 F.3d 649 (D.C. Cir. 1994). Such a departure could only apply at a sentencing or resentencing, but Petitioner's case is not before the Court for a sentencing determination and the Court cannot simply reduce a defendant's sentence. Therefore, the motion as presented should be denied. Because Petitioner seeks to attack his sentence, and out of an abundance of caution, the Court treated Petitioner's filing as a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. However, even so treated, the Motion cannot be further processed because court records reveal that Petitioner previously filed a § 2255 motion attacking the same conviction and sentence [1:18CV591]. Consequently, Petitioner must move in the United States Court of Appeals for the Fourth Circuit for an order authorizing this district court to consider any motion under § 2255 if he seeks to raise such a motion, as required by 28 U.S.C. § 2255 and 28 U.S.C. § 2244. See AO 243 (MDNC 10/07), Instructions, ¶ (4) (copy enclosed).
Petitioner does not have such permission. Because of this pleading failure, this particular Motion should be filed and then dismissed.
IT IS THEREFORE RECOMMENDED that this action be denied as filed and also, to the extent that Petitioner may intend to raise a claim under § 2255, dismissed sua sponte for failure to obtain certification for this § 2255 application by filing a Motion for Authorization in the court of appeals as required by 28 U.S.C. §§ 2255 and 2244 and Fourth Circuit Local Rule 22(d) and that, there being no substantial issue for appeal concerning the denial of a constitutional right affecting the conviction nor a debatable procedural ruling, a certificate of appealability not issue.
IT IS THEREFORE ORDERED that the Clerk send Petitioner a copy of this Recommendation, instruction forms for filing § 2255 motions in this Court and Motions for Authorization in the court of appeals, and four copies of § 2255 motion forms (more copies will be sent on request). Petitioner should keep the original and two copies of the § 2255 motion which can be submitted in this Court if Petitioner intends to proceed under § 2255 and obtains approval from the Fourth Circuit.