Opinion
3:05-CR-113-L
06-28-2016
UNITED STATES OF AMERICA, v. CLYDE DALE EVANS
FINDINGS , CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions and Recommendation of the United States Magistrate Judge follow: I. Procedural Background
Before the Court is Petitioner's Notice to the Court. (ECF No. 260.) Petitioner seeks to challenge his sentence under the Supreme Court's decision in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015). The Court finds the petition should be construed as a successive petition under 28 U.S.C. § 2255.
Petitioner pled guilty to conspiracy to possession of a controlled substance with intent to distribute. On May 16, 2007, the district court sentenced him to 188 months in prison. On January 11, 2008, the Fifth Circuit Court of Appeals dismissed Petitioner's appeal. United States v. Evans, No. 07-10596 (5th Cir. Jan. 11, 2008) (per curiam).
On May 1, 2009, Petitioner filed his first § 2255petition. Evans v. United States, No. 3:09-CV-944-L (N.D. Tex.). On August 31, 2009, the district court denied the petition.
On June 23, 2016, Petitioner filed the instant petition. He seeks to challenge his conviction under the Supreme Court's decision in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015). II. Discussion
The Antiterrorism and Effective Death Penalty Act of 1996 limits the circumstances under which a federal prisoner may file a second or successive motion for post-conviction relief. ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT, Pub. L. 104-132, 110 Stat. 1214 (1996). A defendant must show that the successive motion is based on: (1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found him guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. 28 U.S.C. § 2255. This determination must be made by a three-judge panel of the court of appeals before defendant files his motion in district court. 28 U.S.C. §§ 2241 and 2255.
The Fifth Circuit has not issued an order authorizing this Court to consider the successive motion. Petitioner must obtain such an order before another motion for post-conviction relief is filed. III. Recommendation
The Court recommends that this petition be TRANSFERRED to the United States Court of Appeals for the Fifth Circuit pursuant to In re Epps, 127 F.3d 364, 365 (5th Cir. 1997).
The Clerk of Court is directed to open a new civil action pursuant to § 2255 (nature of suit 510) for statistical purposes, with direct assignment to District Judge Lindsay and Magistrate Judge Stickney, and to close same on the basis of this order.
Signed this 28th day of June, 2016.
/s/_________
PAUL D. STICKNEY
UNITED STATES MAGISTRATE JUDGE
INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of this report and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).