Opinion
CRIMINAL ACTION No. 03-338
12-31-2013
UNITED STATES OF AMERICA v. MELVIN LUTCHER
ORDER
Before the Court is a motion filed by petitioner, Melvin Lutcher, for reconsideration of the denial of his previous 28 U.S.C. § 2255 petition.
R. Doc. No. 527.
28 U.S.C. § 2244(b)(3) provides that "before the district court may accept a successive petition for filing, the court of appeals must determine that it presents a claim not previously raised that is sufficient to meet § 2244(b)(2)'s new-rule or actual-innocence provisions." Gonzalez v. Crosby, 545 U.S. 524, 530 (2005). "[A] subsequent motion is 'second or successive' when it: 1) raises a claim challenging the petitioner's conviction or sentence that was or could have been raised in an earlier petition; or 2) otherwise constitutes an abuse of the writ." United States v. Orozco-Ramirez, 211 F.3d 862, 867 (5th Cir. 2000) (citation and quotation omitted).
Defendant's motion for reconsideration raises claims that were or could have been raised in his earlier petition. "'Rule 60(b) cannot be used to circumvent restraints on successive habeas petitions.'" United States v. Rich, 141 F.3d 550, 553 (5th Cir. 1998) (quoting Felker v. Turpin, 101 F.3d 657, 661 (1996)).
Accordingly,
IT IS ORDERED that petitioner's motion is construed as a second or successive petition.
IT IS FURTHER ORDERED that petitioner's motion is DISMISSED WITHOUT PREJUDICE for failure to obtain authorization from the U.S. Court of Appeals for the Fifth Circuit to file such a petition.
New Orleans, Louisiana, December 31, 2013.
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LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE