Opinion
Nos. 3-90-CR-0189-D(06), 3-97-CV-0929-D.
March 31, 2005
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Defendant Pamela Harris, appearing pro se, has filed a motion to reconsider the final judgment entered in this criminal case. For the reasons stated herein, the motion should be treated as a motion to correct, vacate, or set aside sentence and dismissed as successive.
I.
Defendant was convicted by a jury of conspiracy to possess with intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. §§ 846 841(a)(1). Punishment was assessed at 360 months confinement followed by supervised release for a period of five years. Her conviction and sentence were affirmed on direct appeal. United States v. Johnson, 979 F.2d 1533 (5th Cir. 1992) (Table), cert. denied, 113 S.Ct. 1859 (1993). Defendant also filed a motion to correct, vacate, or set aside her sentence under 28 U.S.C. § 2255. That motion was denied on the merits. United States v. Harris, 3-97-CV-0929-D (N.D. Tex. Jan. 26, 1998), rec. adopted, Order (N.D. Tex. Feb. 10, 1998).
Defendant now asks the court to reconsider her judgment of conviction in light of Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d. 403 (2004) and United States v. Booker, 125 S.Ct. 738, 2005 WL 50108 at *15 (U.S. Jan. 12, 2005). As grounds for her motion, defendant argues that the amount of drugs involved in the conspiracy and certain factors used to enhance her sentence were not submitted to the jury in violation of the Sixth Amendment to the United States Constitution.
II.
The court initially observes that defendant may challenge her conviction and sentence only in a section 2255 motion. See United States v. Rich, 141 F.3d 550, 551 (5th Cir. 1998), cert. denied, 119 S.Ct. 1156 (1999) (motions brought by federal prisoners under Rule 60(b), but which essentially seek to set aside their convictions on constitutional grounds, may be treated as section 2255 motion); United States v. Olivares, 2002 WL 1822944 at *1 (N.D. Tex. Aug. 6, 2002) (Kaplan, J.) (treating Rule 60(b) motion in criminal case as successive section 2255 motion). Because defendant already has sought post-conviction relief, the court must determine whether she can bring this action without prior approval from the court of appeals.
III.
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 her 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 her motion in district court. 28 U.S.C. §§ 2241 2255.
The Fifth Circuit has not issued an order authorizing the district court to consider this successive motion. Defendant must obtain such an order before another motion for post-conviction relief is filed.
RECOMMENDATION
Defendant's motion to correct, vacate, or set aside her sentence should be dismissed without prejudice pending review by a three-judge panel of the court of appeals.