United States District Court, W.D. Louisiana
REPORT AND RECOMMENDATION
C. MICHAEL HILL, Magistrate Judge.
Before the court is the Motion to Correct Illegal Sentence filed by pro se petitioner, Johnny Joseph Green, pursuant to 28 U.S.C. § 2255 on September 22, 2014. [rec. doc. 81]. Petitioner attacks his 180 month sentence imposed by this Court on March 8, 2004, following his September 15, 2003 conviction for being a felon in possession of a firearm.
On September 15, 2003, petitioner pled guilty to being a felon in possession of a firearm. [rec. docs. 20-24]. On March 8, 2004, Green was sentenced to a term of 180 months imprisonment, consecutive to Green's Louisiana State sentence. [rec. docs. 28 and 29]. Petitioner did not directly appeal his conviction or sentence.
On April 26, 2004 and August 23, 2004, petitioner filed motions to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. [rec. docs. 31 and 44]. In these motions and Memorandum in Support of the Motions, Green asserted that he was denied effective assistance of counsel because his sentence was not ordered to run concurrent with his state court sentence as he was allegedly promised in his Plea Agreement and because his attorney did not object to the application of sentencing enhancements in his Pre-Sentence Investigation Report. [ See rec. doc. 38]. Following a response by the government [rec. docs. 36 and 37] a reply by petitioner, and an attempt to amend his Motion, which the court construed as an additional reply [rec. docs. 40, 41 and 50], Judge Haik denied the motions on July 31, 2006. [rec. doc. 48].
On August 7, 2006, Green filed a "Supplemental" Motion to Vacate pursuant to 28 U.S.C. § 2255 arguing that he had "discovered federal jurisprudence to strengthen his original 2255 Motion...." [rec. doc. 51]. In this Motion, petitioner again argued that his sentence should not have been imposed to run consecutive to his Louisiana state court sentence, and that his criminal history score was erroneously calculated because various prior convictions were consolidated for sentencing. By Order dated August 11, 2006, Judge Haik denied the Motion finding the "Supplemental" Motion lacked merit. [rec. doc. 52].
Petitioner's request for a certificate of appealability was denied by the United States Fifth Circuit Court of Appeals on July 11, 2007. [rec. doc. 70, United States v. Green, No. 06-30865 (5th Cir. 2007) (unpublished)].
On September 22, 2014, petitioner filed the instant motion asserting that under Amendment 709 to the United States Sentencing Guidelines, which became effective on November 1, 2007, he should not have been sentenced as a career offender.
LAW AND ANALYSIS
For the reasons which follow, the instant motion is "second or successive" within the meaning of 28 U.S.C. § 2255(h) and § 2244(b)(2), filed without proper authorization from the United States Fifth Circuit Court of Appeals.
As set forth above, this court's records demonstrate that petitioner filed at least one previous motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, attacking the same conviction and sentence that is the subject of this motion.
That § 2255 motion was addressed on the merits and was denied and dismissed with prejudice on July 28, 2006. Petitioner's "Supplemental" Motion was likewise denied on the merits on August 11, 2006. Moreover, petitioner's request for a certificate of appealability to appeal this Court's rulings was denied by the United States Fifth Circuit Court of Appeals on July 11, 2007. United States v. Green, No. 06-30865 (5th Cir. 2007) (unpublished). Therefore, this is Green's second, and possibly third, § 2255 motion filed in this court in which petitioner attacks the same conviction and sentence that were the subject of his previous motion.
AEDPA uses the phrase "second or successive" as a "term of art." In re Lampton, 667 F.3d 585, 587-588 (5th Cir. 2012). The phrase appears in both § 2244 and § 2255, and it carries the same meaning in both provisions. Id. at 588. However, AEDPA does not define what constitutes a "second or successive" motion. Decisions of the United States Supreme Court and Fifth Circuit Court of Appeals provide guidance in determining when a § 2255 motion should be considered second or successive for purposes of § 2244.
The Supreme Court has found that the phrase "second or successive" does not encompass all "applications filed second or successively in time." Lampton, 667 F.3d at 588 citing Magwood v. Patterson, 561 U.S. 320, 130 S.Ct. 2788, 2796 (2010). Rather, it "must be interpreted with respect to the judgment challenged." Id . citing Magwood, 130 S.Ct. at 2797. AEDPA's bar on second or successive petitions therefore applies to a later-in-time petition that challenges the same judgment imposing the same sentence as an earlier-in-time petition. Id . citing Burton v. Stewart, 549 U.S. 147, 156, 127 S.Ct. 793 (2007). The Supreme Court has further held that the phrase "second or successive" ...