Opinion
Cause No. SA-05-CA-0484-RF, (SA-95-CR-200 (3)-EP).
June 24, 2005
ORDER DENYING DEFENDANT'S MOTION FOR RECONSIDERATION
BEFORE THE COURT, filed pursuant to Fed.R.Civ.P. 59 is Defendant's Motion for Reconsideration (Docket No. 251) of the Court's Order to adopt in its entirety the Memorandum and Recommendation of The United States Magistrate Judge, John W. Primomo (Docket No. 249) entered on June 23, 2005. After due consideration of the objections filed by Defendant in response to the Memorandum and Recommendation of The United States Magistrate Judge, the Court remains of the opinion that the Magistrate Judge's Report and Recommendation should be ADOPTED IN ITS ENTIRETY, and thus, Defendant's Motion for Reconsideration fails.
BACKGROUND
A jury found Defendant guilty of four counts of money laundering. The judge sentenced Defendant to serve 175 months in prison on each count, to be served concurrently followed by a supervised release term of three years. On appeal, a Fifth Circuit Court of Appeals panel reversed, finding that as a matter of law, Defendant had been entrapped. Upon rehearing, Defendant's conviction was affirmed.
United States v. Brace, 145 F.3d 247 (5th Cir.).
Defendant filed his first § 2255 Motion to vacate sentence on November 1, 1999, alleging that he had received ineffective assistance of counsel at trial and on appeal. The District Court denied the § 2255 Motion on September 5, 2000. Defendant again appealed, and his request for a certificate of appeal was denied by the District Court and the Court of Appeals. Defendant filed his second § 2255 Motion to vacate sentence on May 23, 2005. In his second § 2255 Motion to vacate sentence, Defendant asserted that because the Court, as opposed to a jury, found facts to lengthen his sentence from a range of 33-41 months to 175 months, his Sixth Amendment, Fifth Amendment, and Eighth Amendment rights had been violated. On May 26, 2005, United States Magistrate Judge John W. Primomo issued his Memorandum and Recommendation, recommending that the Court deny the Motion to vacate sentence under 28 U.S.C. § 2255. The Court issued an Order adopting the United States Magistrate Judge's Memorandum and Recommendation (Docket No. 249) on June 23, 2005.
Docket No. 243, at 1.
STANDARD OF REVIEW
The Court reviews de novo a Magistrate Judge's Memorandum and Recommendation if a party files specific objections within ten days of service. The Court need not consider objections that are frivolous, conclusive, or general in nature.
Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
In the instant case, Defendant filed a Motion for Reconsideration because the Court failed to consider Defendant's objections when it adopted in its entirety the Magistrate Judge's Memorandum and Recommendation. Accounting for Defendant's objections, the Court now reviews de novo the Memorandum and Recommendation of the United States Magistrate Judge. In reviewing de novo the Magistrate Judge's Memorandum and Recommendation, the Court finds that Defendant's objections, specifically that his Sixth Amendment, Seventh Amendment, and Eighth Amendment rights have been violated, are conclusory and general in nature.
DISCUSSION
I. Lack of Retroactivity
Title 28 U.S.C. § 2255 provides relief for a federal prisoner who can satisfy one of the following four criteria: (1) his sentence was imposed in violation of the Constitution or the laws of the United States; (2) the sentencing court was without jurisdiction to impose the sentence; (3) the sentence exceeded the maximum sentence authorized by law; or (4) the sentence is otherwise subject to collateral attack.
28 U.S.C. § 2255; See United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996); United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995).
A claim presented in a second or successive motion under § 2255 which was not presented in a prior application must be dismissed unless the applicant can show inter alia that the claim relies on a new rule of constitutional law that was previously unavailable and has been made retroactive to cases on collateral review by the Supreme Court. A new rule is not made retroactive to cases on collateral review unless the Supreme Court holds the new rule to be retroactive. The Supreme Court remains the only court which can make a new rule retroactive.
Reyes-Requena v. United States, 243 F.3d 893, 896 (5th Cir. 2000); See 28 U.S.C. § 2255 (2000).
Tyler v. Cain, 533 U.S. 656, 663 (2001).
Id.
Defendant misconstrues the Supreme Court's decisions in Apprendi v. New Jersey, Blakely v. Washington, and United States v. Booker, when he says that the new rules derived from these cases have been made retroactive to cases on collateral review. In Booker, the Supreme Court expressly held that both the Sixth Amendment holding and its remedial interpretation "apply to all cases on direct review." Additionally, the Supreme Court has not made any decision or combination of decisions that while not expressly making the rule of Apprendi, Booker, and Blakely retroactive, "necessarily dictate the retroactivity of that rule." Conversely, the Supreme Court has "strongly suggested" that Apprendi, and by "logical extension," Blakely and Booker do not apply retroactively on collateral review. In In re Ellwood, the Fifth Circuit adopts the position of its sister circuits by holding that Booker does not apply retroactively on collateral review for purposes of a § 2255 motion. Defendant reasons that it is not necessary for the Supreme Court to decide whether or not his claim applies retroactively under Booker because his § 2255 motion is not necessarily "second and successive." However, his motion is "second," because he did not initially ask for his sentence to be vacated before the Supreme Court's Booker decision.
Docket No. 251.
In re Elwood, 408 F.3d 211 (5th Cir. 2005) (quoting United States v. Booker, 125 S.Ct. 738, 769 (2005)).
Tyler, 533 U.S. at 666.
See Schiro v. Summerlin, 124 S.Ct. 2519, 2526 (2004).
In re Ellwood, 408 F.3d at 213.
Docket No. 251, at ¶ 6.
II. Lack of Jurisdiction
Most importantly, § 2255 requires a movant to seek and obtain permission from the court of appeals before he pursues a second or successive motion to vacate his sentence under § 2255. Failure to obtain authorization for a successive § 2255 motion deprives the district court of jurisdiction to consider the motion.
United States v. Rich, 141 F.3d 550, 551 (5th Cir. 1998); In re Tolliver, 97 F.3d 89, 90 (5th Cir. 1996).
United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000).
The Court has no jurisdiction to consider Defendant's successive § 2255 motion because Defendant has not sought permission from the Fifth Circuit Court of Appeals before pursuing this successive § 2255 motion to vacate sentence.
CONCLUSION
Accordingly, the Court finds that Defendant's Motion for Reconsideration of the Magistrate Judge's Memorandum and Recommendation fails. Accordingly, the Memorandum and Recommendation should be ADOPTED IN ITS ENTIRETY.
It is further ORDERED that Movant's motion to vacate sentence pursuant to 28 U.S.C. § 2255 be DENIED.