Opinion
3:84-CR-148-G, 3:02-CV-1944-G
September 25, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636 (b), implemented by an Order of the Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS :
Type of Case: Petitioner has filed a Motion to Vacate Sentence pursuant to Federal Rule of Civil Procedure 60(b).
Parties: Petitioner is a federal prisoner. Respondent is the United States.
Statement of the Case: Petitioner was found guilty of: (1) maliciously damaging and destroying by means of an explosive bomb, property being used in an activity affecting interstate commerce, and resulting in death, in violation of 18 U.S.C. § 844 (i); (2) possessing a firearm in violation of 26 U.S.C. § 5861 (d) and 5871; and (3) making a firearm in violation of 16 U.S.C. § 5822 (e), 5861(f) and 5871. Petitioner was sentenced to life imprisonment on count one and ten years on each counts two and three to run concurrently to each other and consecutively to count one. On November 5, 1985, the Fifth Circuit remanded the case for re-sentencing. On November 13, 1985, Petitioner was sentenced to 99 years imprisonment on count one and ten years on each counts two and three to run concurrently to each other and consecutively to count one.
On January 21, 1986, Petitioner filed a motion to vacate sentence under 28 U.S.C. § 2255. On June 19, 1986, the district court denied Petitioner's motion. On June 22, 1987, the Fifth Circuit affirmed the district court's denial of habeas relief. United States v. Williams, 819 F.2d 605 (5th Cir. 1987). On July 23, 1986, Petitioner filed a motion for correction or reduction of sentence pursuant to Fed.R.Crim.P. 35. On July 29, 1986, the district court denied Petitioner's motion.
On September 6, 2002, Petitioner filed this motion to vacate sentence pursuant to Fed.R.Civ.P. 60(b). Petitioner claims his sentence of 99 years imprisonment is void because it exceeds the statutory maximum sentence and is beyond the scope of the District Court's authority. Petitioner claims his sentence constitutes an abuse of discretion and violates Petitioner's due process and equal protection rights.
Discussion:
Although Petitioner filed this petition as motion for relief from judgment under Fed.R.Civ.P. 60(b), his motion is properly construed as a successive petition for habeas corpus. As the Fifth Circuit has stated, a motion raising new claims after entry of final judgment is properly viewed as a successive federal petition. Behringer v. Johnson, 75 F.3d 189, 190 (5th Cir. 1996); Fierro v. Johnson, 197 F.3d 147, 151 (5th Cir. 1999). In this case, Petitioner's first motion for habeas relief was denied by the Fifth Circuit. Over fifteen years after that denial, Petitioner filed this motion for relief from judgment. Petitioner's motion raises the new claims that his sentence of 99 years imprisonment is void because it exceeds the statutory maximum sentence and is beyond the scope of the District Court's authority. The petition is therefore properly viewed as a second habeas petition. Behringer, 75 F.3d at 190.
When a petition is second or successive, the petitioner must seek an order from the Fifth Circuit authorizing this Court to consider the petition. See 28 U.S.C. § 2244 (b)(3)(A). The Fifth Circuit may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of 2244(b). See 28 U.S.C. § 2244 (b)(3)(C). To present a claim in a second or successive application, the petitioner must show the application 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 fact finder 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. See 28 U.S.C. § 2244 (b)(2). Before Petitioner files his application in this Court, a three-judge panel of the Fifth Circuit must determine whether the application makes the requisite prima facie showing. See 28 U.S.C. § 2244 (b)(3)(A) and (B).
The Fifth Circuit has not issued an order authorizing the district court to consider this successive application for habeas relief. Petitioner must obtain such an order before this case is filed.
RECOMMENDATION:
For the foregoing reasons, the Court recommends that the petition be dismissed without prejudice to Petitioner's right to seek permission to file a successive petition from the United States Court of Appeals for the Fifth Circuit pursuant to 28 U.S.C. § 2244 (b) (3
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a true copy of these findings, conclusions and recommendation on Petitioner. Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must serve and file written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A party's failure to file such written objections to these proposed findings, conclusions and recommendation shall bar that party from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472 (1985). Additionally, any failure to file written objections to the proposed findings, conclusions and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).