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Lutcher v. Johnson

United States District Court, W.D. Louisiana, Lake Charles Division

February 22, 2018

MELVIN LUTCHER, SR. REG. # 21092-034
v.
CALVIN JOHNSON

         SECTION P

          REPORT AND RECOMMENDATION

          KATHLEEN KAY UNITED STATES MAGISTRATE IUDGE

         Before the court is the pro se petition for writ of habeas corpus, and amendment thereto, filed pursuant to 28 U.S.C. § 2241 by Melvin Lutcher. Lutcher is an inmate in the custody of the Bureau of Prisons and is currently incarcerated at the Federal Correctional Institute at Oakdale, Louisiana.

         This matter has been referred to the undersigned for review, report, and recommendation in accordance with 28 U.S.C. § 636 and the standing orders of this court. For reasons stated below, IT IS RECOMMENDED that the petition be DISMISSED WITHOUT PREJUDICE.

         I.

         Background

         Following a jury trial, Lutcher was convicted in the United States District Court for the Eastern District of Louisiana of one count of conspiracy to possess with intent to distribute cocaine base and cocaine hydrochloride, a violation of 21 U.S.C. § 846, and one count of use of a communications facility in connection with a crime, a violation of 21 U.S.C. § 843(b). United States v. Johnson, No. 2:03-cr-00338(2), docs. 241 and 256 (E.D. La. Feb. 16, 2005). On February 16, 2005, he was sentenced to serve concurrent terms of imprisonment of 293 months and 48 months for those convictions, respectively. Id. at doc. 256. Lutcher filed a notice of appeal and sought relief in the United States Court of Appeals for the Fifth Circuit, but that court affirmed his conviction on June 2, 2006. Id. at docs. 259, 303.

         Lutcher then filed his first motion to vacate under 28 U.S.C. § 2255 in the trial court on July 24, 2007, which the court denied on May 26, 2009, after multiple amendments and responses. Id. at docs. 321, 428, 429. The Fifth Circuit denied Lutcher a certificate of appealability on this judgment and the U.S. Supreme Court denied his petition for a writ of certiorari. Id. at docs. 455, 472. The U.S. Supreme Court denied Lutcher's petition for a writ of certiorari. Id. at doc. 472. On April 7, 2008, Lutcher also filed a motion to reduce sentence pursuant to 18 U.S.C. § 3582 requesting retroactive application of 2007 amendments to the Sentencing Guidelines. Id. at doc. 375. The court appointed counsel to represent Lutcher for the purposes of that motion. Id. at doc. 376. It then denied the motion on August 22, 2008, and the Fifth Circuit affirmed the court's judgment. Id. at docs. 396, 456.

         On November 10, 2011, Lutcher filed a motion for reduction of sentence based on 2011 amendments to the Sentencing Guidelines which allowed defendants to seek resentencing based on the Fair Sentencing Act of 2010. Id. at doc. 476. Counsel was appointed to represent him and the motion for reduction was granted on March 8, 2012. Id. at docs. 490, 491. The court noted that, while the new amended guideline range for his conviction was 151 to 188 months, the mandatory minimum in his case prevented the court from sentencing him to any term less than 240 months. Id. at doc. 491. Accordingly, it reduced his previous sentence from 293 months to 240 months. Id. On March 22, 2012, Lutcher again moved for reduction of sentence based on the 2011 amendments, disputing the mandatory minimum imposed. Id. at doc. 492. The court construed this motion as a motion for reconsideration of its order granting the petitioner's second motion to reduce sentence, and denied it. Id. at doc. 497. The Fifth Circuit affirmed the trial court's judgment. See Id. at doc. 513.

         Lutcher then attempted further motions to reduce or vacate sentence in the trial court, which were likewise denied. See Id. at docs. 515-57 (proceedings on § 2255 motion filed November 2013); id. at docs. 585, 610-29 (proceedings on § 3582 motion to reduce sentence filed November 2014); id. at docs. 630-39, 661 (proceedings on § 2255 motion filed August 2016); id. at docs. 656-59, 662-69 (proceedings on § 3582 motion to reduce sentence filed September 2017). His appeal of the trial court's denial of his September 2017 motion to reduce sentence is currently pending before the Fifth Circuit. See United States v. Lutcher, No. 17-30995 (5th Cir.).

         Lutcher now seeks relief in this court under 28 U.S.C. § 2241, arguing that his sentence should be reduced based on the government's failure to prove the amount of cocaine attributable to him, individually, and the court's failure to submit that question to the jury and determine his eligibility for a reduction of the mandatory minimum sentence based on that amount. Doc. 1; doc. 10. He also asserts that the trial court used an improper evidentiary standard in allowing the government to introduce intercepted cell phone communications. Doc. 1, p. 11.

         II.

         Law & Analysis

         Habeas corpus petitions filed pursuant to 28 U.S.C. § 2241 are generally used to challenge the manner in which a sentence is executed. See Warren v. Miles, 230 F.3d 688, 694 (5th Cir. 2000). A motion to vacate sentence filed pursuant to 28 U.S.C. § 2255 allows federal inmates to collaterally attack the legality of their convictions or sentences. Cox v. Warden, Fed. Det. Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990). Here Lutcher collaterally attacks his ...


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