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United States v. Simon

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

March 25, 2018

UNITED STATES OF AMERICA
v.
ERICK DWAYNE SIMON

          MINALDI JUDGE

          REPORT AND RECOMMENDATION

          KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE

         Before 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.

         For 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.

         I.

         Background

         Pursuant 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.

         Simon 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.

         On 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 review.

         II.

         Law and Analysis

         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 Simon's first § 2255 motion was adjudicated on the merits, the instant motion qualifies as successive.[1] 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.

         Here no 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 ...


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