Opinion
Case No. 5:03-cr-52-TES-CHW-2 Case No. 5:03-cr-98-TES-CHW-1 Case No. 5:03-cr-99-TES-CHW-1 Case No. 5:03-cr-100-TES-CHW-1 Case No. 5:03-cr-105-TES-CHW-1
10-29-2019
DAVID ANTOINE LUSTER, Movant, v. UNITED STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATION
Following the denial in 2006 of his original motions under 28 U.S.C. § 2255 to vacate, set aside, or correct his five separate convictions, Movant David Antoine Luster has filed numerous post-conviction motions seeking to vacate his conviction. As repeatedly explained to Movant, this Court lacks the authority to entertain successive Section 2255 motions absent prior authorization from the Eleventh Circuit Court of Appeals. See 28 U.S.C. § 2255(h).
The Court looks to the substance of Movant's filings, and not their form, in determining whether they seek relief under 28 U.S.C. § 2255. Although Movant's present motions are styled as motions for arrest of judgment for lack of jurisdiction pursuant to Rule 34 of the Federal Rules of Criminal Procedure, in substance they are a collateral attack based on the argument that Movant's conviction was in violation of the United States Constitution. Movant contends that his convictions under 18 U.S.C. § 924(c) are invalid following the decision of the United States Supreme Court in United States v. Davis, 139 S.Ct. 2319 (2019). The proper avenue of relief for such a collateral attack is Section 2255. United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005). Nothing in the record indicates that Movant has sought or received authorization from the Eleventh Circuit Court of Appeals to file a second or successive Section 2255 motion. Without such authorization from the Eleventh Circuit, this Court has no jurisdiction to entertain a second or successive motion. Farris v. United States, 333 F.3d 1211 (11th Cir. 2003).
Movant was convicted of Section 924(c) violations only in Case No. 5:03-cr-52.
As Movant's most recent filings constitute further unauthorized successive requests for Section 2255 relief, it is RECOMMENDED that Movant's latest round of motions be DISMISSED for lack of subject-matter jurisdiction.
In Case No. 5:03-cr-52, Movant's motions are listed as CM/ECF Docket Nos. 170 and 171.
In Case No. 5:03cr98, they are listed as CM/ECF Docket Nos. 67 and 68.
In Case No. 5:03cr99, they are listed as CM/ECF Docket Nos. 71 and 72.
In Case No. 5:03cr100, they are listed as CM/ECF Docket Nos. 60 and 61.
In Case No. 5:03cr105, they are listed as CM/ECF Docket Nos. 69 and 70.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, WITHIN FOURTEEN (14) DAYS after being served with a copy thereof. The District Judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are further notified that, pursuant to Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice."
SO RECOMMENDED, this 29th day of October, 2019.
s/ Charles H. Weigle
Charles H. Weigle
United States Magistrate Judge