United States District Court, W.D. Louisiana, Lake Charles Division
REPORT AND RECOMMENDATION
KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE
the court is a Motion to Vacate, Set Aside, or Correct
Sentence filed pursuant to 28 U.S.C. § 2255 by defendant
Erick Dwayne Simon. Doc. 76. This motion was referred to the
undersigned for review, report, and recommendation in
accordance with the provisions of 28 U.S.C. § 636.
reasons stated below, IT IS RECOMMENDED that
the motion be DISMISSED WITHOUT PREJUDICE as
a successive § 2255 motion filed without prior
authorization from the Fifth Circuit.
to a plea agreement, Simon was convicted in this court on
June 2, 2008, of one count of possession of a firearm by a
convicted felon, a violation of 18 U.S.C. §§
922(g)(1) and 924(e). Docs. 23 & 24; see doc. 1.
According to the stipulated factual basis for his guilty
plea, Simon was subject to a penalty enhancement under the
Armed Career Criminal Act (“ACCA”) based on prior
convictions in state court. Doc. 23, atts. 1 & 2. He was
sentenced to a 180 month term of imprisonment on October 10,
2008, the minimum allowed under 18 U.S.C. § 924(e).
Docs. 28, 29; see doc. 23, att. 1.
filed his first motion to vacate under 28 U.S.C. § 2255,
pro se, on October 12, 2010. Doc. 44. After ordering a
response from the government, the court denied his motion on
the merits. Doc. 52. Simon sought review in the United States
Fifth Circuit Court of Appeal, which affirmed the trial
court's judgment. Doc. 60. He then filed a motion to
modify sentence and vacate enhancement in the trial court,
which was construed as a successive § 2255 and dismissed
based on Simon's failure to obtain authorization from the
Fifth Circuit, infra. Docs. 61, 64. Simon filed a notice of
appeal to the Fifth Circuit, but his appeal was dismissed for
want of prosecution on October 15, 2012. Docs. 65, 74.
April 11, 2016, this court received the instant § 2255
motion from Simon, requesting relief based on the Supreme
Court's decision in Johnson v. United States,
135 S.Ct. 2551 (2015). Doc. 76. Under the court's
standard procedural and administrative orders governing
Johnson-based § 2255 motions, the Office of the
Public Defender was appointed to represent Simon. Doc. 77.
The government has not filed any opposition to the motion,
and Simon's attorney has now withdrawn. Docs. 80, 81. No.
further administrative or procedural order has been entered
as to this matter. Accordingly, the motion is now ripe for
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.
Simon'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)). A
second or successive motion will only be authorized by the
Court of Appeals if it is based on newly discovered evidence
“sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have found the
movant guilty of the offense, ” or “a new rule of
law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable.” 28
U.S.C. § 2255(h). 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, transfer is not mandatory and Epps
instead “merely adopts a procedure to be used when a
district court determines that transfer is
appropriate.” Byrd, 2016 WL 6538506 at *3.
transfer warranted, as Simon has not shown a basis for the
Fifth Circuit's certification under § 2255(h). He
points to no new evidence and his Johns ...