Opinion
CRIMINAL ACTION NO. 09-391 SECTION "R" (5)
06-11-2020
UNITED STATES OF AMERICA v. JIMMY ISAAC
ORDER AND REASONS
The Court has received a motion from defendant Jimmy Isaac to receive relief pursuant to United States v. Davis, 139 S. Ct. 2319 (2019). Defendant states that based on Davis, the statute under which defendant was convicted is "no longer usable." Because the Court construes this motion as a successive habeas petition—and defendant has not sought authorization from the Fifth Circuit to file it—the Court dismisses it.
R. Doc. 1027; R. Doc. 1031.
Plaintiff references the "Davis case . . . fil[ed] on June 24[,] 2019," which invalidated 18 U.S.C. § 924(c)(3)(B). See R. Doc. 1031 at 1.
See id.
A review of the Court's records reflects that defendant has filed prior petitions for a writ of habeas corpus related to this same conviction. In 2010, defendant was convicted for his involvement in a drug conspiracy and for possessing a firearm in furtherance of that drug crime. In 2016, defendant filed his first habeas petition. In that petition, he argued that his sentence was improper under Johnson v. United States, 135 S. Ct. 2551 (2015). The Court denied his petition to vacate. The petitioner did not appeal this judgment.
R. Doc. 919; R. Doc. 1013.
See R. Doc. 203 at 1.
R. Doc. 919.
See id. at 4, 14-16.
R. Doc. 976; see also R. Doc. 975 at 3.
In 2018, defendant filed a second habeas petition. In that petition, he argued that his conviction under 18 U.S.C. 924(c) was unconstitutional, pursuant to Sessions v. Dimaya, 138 S. Ct. 1204 (2018), and that his guilty plea was involuntary, pursuant to Bousley v. United States, 523 U.S. 614 (1998). The Court transferred that petition to the Fifth Circuit in order to determine whether defendant was authorized to file it before the Court. The Fifth Circuit dismissed defendant's request for authorization.
R. Doc. 1013.
See id. at 4; R. Doc. 1013-1 at 1.
See R. Doc. 1013 at 5; R. Doc. 1013-1 at 1-2.
See R. Doc. 1032 at 3.
R. Doc. 1042.
Now, plaintiff asks for relief under Davis. He does not specify a specific procedural basis for his "motion to consider," but does suggest that his conviction should no longer stand. Consequently, as "Section 2255 provides the primary means of collaterally attacking a federal conviction and sentence," Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001) (per curiam), the Court construes this request for relief as a habeas petition under 28 U.S.C. § 2255. See United States v. Rich, 141 F.3d 550, 551 (5th Cir. 1998) ("There is a trend among circuit courts to look beyond the formal title affixed to a motion if the motion is the functional equivalent of a motion under § 2255."); see also Landazuri v. United States, No. CR 98-60030-02, 2006 WL 8441370, at *1 (W.D. La. Jan. 11, 2006) ("Although [defendant's] motion is not styled as a motion under § 2255, it must be read as such. . . . [T]he motion is the functional equivalent of a motion to vacate, set aside, or correct an illegal sentence under § 2255 . . . ."), report and recommendation adopted, No. CR 98-60030-02, 2006 WL 8441371 (W.D. La. Feb. 1, 2006).
See R. Doc. 1031 at 1.
The Court also notes that because defendant has previously filed a Section 2255 petition, a Castro warning is not necessary. See Rudzavice v. Mejia, 637 F. App'x 154, 155 (5th Cir. 2016) (per curiam) ("Castro [v. United States, 540 U.S. 375 (2003),] pertains to the recharacterization of a first § 2255 motion. Because the petition was not [defendant's] first, the Castro warnings were unwarranted." (citation omitted)). --------
Under 28 U.S.C. § 2255, "[a] second or successive motion must be certified . . . by a panel of the appropriate court of appeals." See 28 U.S.C. § 2255(h); see also 28 U.S.C. § 2244(b)(3)(A). This requirement "acts as a jurisdictional bar to the district court's asserting jurisdiction over any successive habeas petition until this court has granted the petitioner permission to file one." United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000) (per curiam). Nothing in the Court's record indicates that defendant has sought authorization from the court of appeals. As such, this court does not have jurisdiction over his petition.
Given that this is defendant's third habeas petition—and the Fifth Circuit did not authorize his prior petition—the Court finds dismissal the appropriate course. See United States v. Fulton, 780 F.3d 683, 686 (5th Cir. 2015) ("[A] district court may dispose of applications lacking authorization through dismissal."); United States v. Davis, No. 4:05-CR-111-Y(2), 2012 WL 12994734, at *1 (N.D. Tex. Feb. 13, 2012) ("Since [petitioner's] previous motions construed as seeking relief under § 2255 were transferred to the court of appeals, and that court denied authorization, the instant motion under § 2255 must be dismissed without prejudice . . . ."); see also Sylvester v. Smith, No. CIV.A. 6:14-CV-3434, 2015 WL 3948278, at *2 n.5 (W.D. La. June 26, 2015) ("Although some district courts have transferred second or successive petitions to the Fifth Circuit for authorization, a transfer is not mandatory.").
For the foregoing reasons, the Court DISMISSES defendant's motion WITHOUT PREJUDICE.
New Orleans, Louisiana, this 11th day of June, 2020.
/s/_________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE