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United States v. Green

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

March 14, 2018

UNITED STATES OF AMERICA
v.
JOHNNY JOSEPH GREEN

          REPORT AND RECOMMENDATION

          KATHLKEEN KAY UNITED STATES MAGISTRATE JUDGE

         Before 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.

         This 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.

         I.

         BACKGROUND

         Pursuant 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), [1] to 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.

         Green 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.

         On 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).

         On 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.

         II.

         Law and Analysis

         A. § 2255 Motion

         Following 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. 1992).

         Because Green's first § 2255 motion was adjudicated on the merits, the instant motion qualifies as successive.[2] 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, ...


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