United States District Court, W.D. Louisiana, Lake Charles Division
REPORT AND RECOMMENDATION
KATHLKEEN KAY UNITED STATES MAGISTRATE JUDGE
the court is a pro se Motion to Vacate, Set Aside,
or Correct Sentence [doc. 89] filed pursuant to 28 U.S.C.
§ 2255 and related Motion to Appoint Counsel [doc. 96]
by defendant Johnny Joseph Green. Green is an inmate in the
custody of the Bureau of Prisons and is currently
incarcerated at the United States Penitentiary at Atlanta,
Georgia. In response the government has filed a memorandum in
opposition/Motion to Dismiss [docs. 93, 94], requesting that
this matter be dismissed for lack of jurisdiction as an
unauthorized successive § 2255 motion.
motion was referred to the undersigned for review, report,
and recommendation in accordance with the provisions of 28
U.S.C. § 636. For reasons stated below, IT IS
RECOMMENDED THAT the government's Motion to
Dismiss [doc. 94] be GRANTED, Green's
Motion to Appoint Counsel [doc. 96] be
DENIED, and the instant Motion to Vacate
[doc. 89] be DISMISSED WITHOUT PREJUDICE.
to a plea agreement, Green was convicted in this court on
September 15, 2003, of one count of being a felon in
possession of a firearm, a violation of 18 U.S.C. §
922(g). Docs. 20- 24. He was then sentenced to a 180 month
term of imprisonment under 18 U.S.C. § 924(e),
be served consecutively to a state court sentence. Docs. 28,
29. He filed an untimely “Motion for Leave to
Appeal” on June 28, 2004, which the court denied. Docs.
32, 47. Otherwise, he did not pursue a direct appeal of his
conviction or sentence.
filed a motion to vacate pursuant to 28 U.S.C. § 2255,
alleging that the court had failed to sentence him in
accordance with his plea agreement. Docs. 31, 44. The court
denied his motion on the merits on July 31, 2006. Doc. 48.
Green filed a supplemental § 2255 motion on or about the
same date, raising additional attacks on his sentence. Doc.
51; see Id. at 3 (filing date). The court also
denied these for lack of merit. Doc. 52. The district court
and Fifth Circuit both declined to issue a certificate of
appealability. Docs. 58, 70.
August 26, 2013, Green filed another motion for a certificate
of appealabilty in the Fifth Circuit, which that court
construed as a motion for authorization to file a successive
§ 2255 motion and denied. In re Green, No.
13-30892 (5th Cir. 2013). Green then filed a “nunc pro
tunc” motion in the district court on September 22,
2014, seeking correction of his sentence. Doc. 81. The court
construed this filing as a successive § 2255 motion and
dismissed it without prejudice. Docs. 83, 85. On June 7,
2016, Green sought authorization to file a successive §
2255 motion in the Fifth Circuit, which that court denied.
In re Green, No. 16-30636 (5th Cir. 2016).
April 24, 2017, Green filed the instant motion pursuant to
§ 2255. Doc. 89; see Id. at 12 (filing date).
Here he claims that he is entitled to relief from his
enhanced sentence under 18 U.S.C. § 924(e) because (1)
one of his predicate state court convictions was obtained
without effective assistance of counsel and (2) the
government failed to prove that his predicate armed robbery
and attempted armed robbery convictions were “committed
on occasions different from one another, ” as required
under § 924(e), supra note 1. Doc. 89, att. 1. The
government opposes this filing as an unauthorized successive
§ 2255 motion and requests that it be dismissed for lack
of jurisdiction. Docs. 93, 94.
§ 2255 Motion
conviction and exhaustion or waiver of the right to appeal,
the court presumes that a defendant “stands fairly and
finally convicted.” United States v. Shaid,
937 F.2d 228, 231- 32 (5th Cir. 1991) (quoting United
States v. Frady, 102 S.Ct. 1584, 1592 (1982)). Relief
under § 2255 “is reserved for transgressions of
constitutional rights and for a narrow range of injuries that
could not have been raised on direct appeal and would, if
condoned, result in a complete miscarriage of justice.”
United States v. Vaughn, 955 F.2d 367, 368 (5th Cir.
Green's first § 2255 motion was adjudicated on the
merits, the instant motion qualifies as
successive. A district court lacks jurisdiction to
consider a second or successive § 2255 motion unless the
Court of Appeals has granted the defendant permission to file
same. United States v. Johnson, 303 Fed. App'x
241, 242 (5th Cir. 2008) (unpublished) (citing United
States v. Key, 205 F.3d 773, 774 (5th Cir. 2000)). When
faced with an unauthorized second or successive § 2255
motion, some district courts opt to transfer the matter to
the Fifth Circuit for a determination of whether the
petitioner should be allowed to proceed, pursuant to In
re Epps, 127 F.3d 364 (5th Cir. 1997). However, ...