Opinion
Nos. 3-00-CR-0228-R(01), 3-05-CV-0373-R.
March 2, 2005
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Defendant James Norman Hartman, appearing pro se, has filed a motion to correct, vacate, or set aside his sentence pursuant to 28 U.S.C. § 2255. For the reasons stated herein, the motion should be dismissed without prejudice pending review by a three-judge panel of the court of appeals.
I.
Defendant pled guilty to conspiracy to manufacture, distribute, or dispense a controlled substance in violation of 21 U.S.C. §§ 846 841(a)(1) and engaging in monetary transactions with property derived from unlawful acts in violation of 18 U.S.C. § 1957(a). Punishment was assessed at 96 months confinement followed by supervised release for a period of five years. No appeal was taken. Instead, defendant filed a motion to correct, vacate, or set aside his sentence under 28 U.S.C. § 2255. The motion was dismissed on limitations grounds. United States v. Hartman, No. 3-03-CV-2740-R (N.D. Tex. Apr. 8, 2004), COA denied, No. 04-10609 (5th Cir. Nov. 5, 2004).
Defendant now seeks post-conviction relief for a second time. In his sole ground for relief, defendant contends that his sentence was enhanced by factors not alleged in the indictment or determined by a jury as required by Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) and United States v. Booker, 2005 WL 50108, 125 S.Ct. 738 (U.S. Jan. 12, 2005). Before addressing this claim, the court must determine whether defendant can file a successive section 2255 motion without prior approval from the court of appeals.
II.
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 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 his sentence should be dismissed without prejudice pending review by a three-judge panel of the court of appeals.