Opinion
3:98-CR-299-R
October 30, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the District Court's order of reference filed on October 28, 2002, Teddy Wayne Solomon's Rule 60(b) motion for relief from judgment, filed on October 15, 2002, has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS:
In his motion for relief from judgment pursuant to Rule 60(b)(2)(3) and (6), Federal Rules of Civil Procedure, Solomon seeks "to dismiss [the] indictment." (Motion at 8). Alternatively, he requests the District Court to order his release from custody due to lack ofjurisdiction. Solomon's reliance on these portions of Rule 60(b) is wholly without merit. As is made clear under Rule 1 of the Federal Rules of Civil Procedure and of the Federal Rules of Criminal Procedure, respectively, each set of rules pertain to civil actions and criminal actions respectively. Therefore, the relief which may be available to Solomon is that found within the provisions of the Federal Rules of Criminal Procedure and/or the provisions of 28 U.S.C. § 2255 (authorizing a collateral attack on a federal criminal conviction).
The record in this criminal case reflects that after a jury found Solomon guilty of 13 counts of mail and wire fraud, and after he was sentenced to a term of imprisonment and ordered to pay restitution and a fine, Solomon effected a direct appeal. The Fifth Circuit affirmed his conviction and sentence on September 21, 2001, and denied his petition for rehearing on October 30, 2001. The Supreme Court subsequently denied Solomon's pro se petition for writ of certiorari on April 15, 2002. See United States v. Solomon, 273 F.3d 1108, No. 00-11210 (5th Cir. 2001) (unpublished), cert. denied, ___ U.S. ___, 122 S.Ct. 1591 (2002).
The record further reflects that, during the pendency of the direct appeal, Solomon filed a § 2255 motion, which was dismissed on November 27, 2000, without prejudice in light of the pendency of his direct appeal. Solomon then filed a petition for writ of error coram nobis, which was dismissed on December 11, 2001, for want of jurisdiction but without prejudice to his right to file a § 2255 motion. Thereafter, Solomon filed a § 2255 motion on December 6, 2001. On April 29, 2002, the District Court filed its order summarily dismissing the motion pursuant to Rule 4(b) of the Rules Governing § 2255 proceedings. Solomon's appeal from the April 29, 10679.
A motion under 28 U.S.C. § 2255 is the only vehicle available to a convicted person, such as Solomon, for challenging the validity of a conviction and sentence. See Hooker v. Sivley, 187 F.3d 680, 681 (5th Cir. 1999). The District Court, however, lacks jurisdiction to construe Solomon's motion for relief from judgment as a § 2255 motion because he has not received prior authorization from the Fifth Circuit to file a successive § 2255 motion. Id. 28 U.S.C. § 2244 (b)(3)(A) and 28 U.S.C. § 2255, as amended by the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, provide that a second or successive motion filed by a person attacking a sentence under § 2255 must be certified by a panel of the appropriate court of appeals before it can be heard in the district court. See In re Epps, 127 F.3d 364 (5th Cir. 1997); see also In re Tolliver, 97 F.3d 89, 90 (5th Cir. 1996) (addressing a similar provision applicable to second or successive motions pursuant to 28 U.S.C. § 2255). In Felker v. Turpin, 518 U.S. 651, 663-64 (1996), the Supreme Court observed that the amendments to § 2244 "simply transfer from the district court to the court of appeals a screening function which would previously have been performed by the district court as required by . . . Rule 9(b)."
The Fifth Circuit has said that "courts may treat motions that federal prisoners purportedly bring under Rule 60(b), but which essentially seek to set aside their convictions on constitutional grounds as § 2255 motions." United States v. Rich, 141 F.3d 550, 551 (5th Cir. 1998); see also Fierro v. Johnson, 197 F.3d 147, 151 (5th Cir. 1999) (Rule 60(b) motions seeking to amend or alter the judgment of a first habeas proceedings under 28 U.S.C. § 2254 "should be construed as successive habeas petitions").
The claims that Solomon seeks to raise in his motion for relief from judgment were available to him when he filed his initial § 2255 motion and are thus, "second or successive" under the AEDPA. United States v. Orozco-Ramirez, 211 F.3d 862, 866-871 (5th Cir. 2000). Unless the Fifth Circuit Court of Appeals first grants Petitioner leave to file the present § 2255 motion, this court lacks jurisdiction to consider the same. See Hooker v. Sivley, 187 F.3d 680, 682 (5th Cir. 1999); United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000). Therefore, Solomon's motion for relief under Rule 60(b) should be dismissed for want of jurisdiction. Such a dismissal, however, is without prejudice to Petitioner's right to file a motion for leave to file a successive § 2255 motion in the United States Court of Appeals for the Fifth Circuit pursuant to § 2244(b)(3)(A). See In re Epps, 127 F.3d at 364 (setting out the requirements for filing a motion for authorization to file a successive habeas petition in the Fifth Circuit Court of Appeals).
RECOMMENDATION
For the foregoing reasons it is recommended that the District Court dismiss Solomon's motion for relief from judgment for want of jurisdiction, but without prejudice to his right to file a motion for leave to file a second or successive § 2255 motion in the United States Court of Appeals for the Fifth Circuit pursuant to 28 U.S.C. § 2244 (b)(3)(A) and 2255.
A copy of this recommendation will be mailed to Teddy Wayne Solomon.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant toDouglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.