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United States v. Sterling

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

March 26, 2018

UNITED STATES OF AMERICA
v.
JUSTIN PAUL STERLING

          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 Justin Paul Sterling. Doc. 229. This motion was referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636.

         I.

         Background

         Sterling was indicted in this court on four counts of possession and distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1); four counts of possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1); and one count of possession of a firearm with obliterated serial numbers, in violation of 18 U.S.C § 922(k). Doc. 16.

         Sterling subsequently pleaded guilty to one of the firearm possession charges and one of the drug trafficking charges. Doc. 67. He proceeded to trial on the remaining charges and was found guilty as charged. Doc. 74. On December 14, 2006, he was sentenced to a 168 month of imprisonment on the drug trafficking charges, a 25 year term on three of the firearm possession during a drug trafficking crime charges and a ten year term on the fourth, and a 60 month term of imprisonment on the possession of a firearm with an obliterated serial number charge. Docs. 102, 105. The court ordered that the first and third sentences would run concurrently, while the 25 year and ten year sentences would run consecutively to each other and to any other sentence. Id. Sterling unsuccessfully sought to have his conviction and sentence vacated through direct review and two motions to vacate under § 2255, with multiple associated motions. The trial court denied the first of his § 2255 motions on the merits, but denied others as unauthorized successive motions until finally ordering that Sterling be barred from filing any further pro se motions without prior judicial approval. Docs. 139, 140, 208.

         Sterling's sentence was modified twice, on February 1, 2010, and March 14, 2012, based on amendments to the United States Sentencing Guidelines on the mandatory minimums for crack cocaine offenses. Docs. 125, 186. Accordingly, his sentence on the drug trafficking charges was reduced from 168 months to 135 months and then 120 months. Id. Sterling continued to seek appellate review of the trial court's denial of his § 2255 motions, but did not file a notice of appeal as to either resentencing. On or about April 29, 2015, he appears to have filed a Motion to Reduce Sentence, and the Office of the Federal Public Defender was appointed to represent him. See doc. 224 (administrative entry); doc. 226 (administrative order). His motion for sentence reduction was then denied on July 13, 2016. Doc 232.

         On June 30, 2016, Sterling filed a third motion to vacate under § 2255. Doc. 229. There he alleged that his motion was timely under § 2255(f)(3) and that he was entitled to have his conviction and sentence vacated under the Supreme Court's recent decision in Johnson v. United States, 135 S.Ct. 2551 (2015). Pursuant to the court's standard administrative order governing Johnson cases, the Office of the Public Defender was appointed to represent Sterling. Doc. 230. The public defender has now moved to withdraw [doc. 235] and no further filings have been received in the case. Accordingly, we consider the matter ripe for review under Rule 4(b) of the Rules Governing § 2255 Proceedings in the United States District Courts.

         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). Before ordering a response from the government, the district court must conduct a preliminary review of a § 2255 motion. Rules Governing § 2255 Proceedings in the United States District Courts, Rule 4(b). Upon that review, “[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion . . . .” Id.

         A reduction in sentence, like the kind received by Sterling, is an amendment to the original sentence rather than a new sentence which restores the defendant's right to seek relief under § 2255 without prior authorization. United States v. Jones, 796 F.3d 483, 485-86 (5th Cir. 2015). Thus, because Sterling'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.Appx. 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, 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.

         The Court of Appeals will only authorize the filing of a successive § 2255 motion under certain circumstances. Relevant to this matter, a successive motion should be authorized if it relies on “a new rule of constitutional law, made retroactive to cases on collateral review, that was previously unavailable.” 28 U.S.C. § 2255(h). As noted supra, Sterling relies on Johnson, 135 S.Ct. 2551 (2015), made retroactively applicable in United States v. Welch, 136 S.Ct. 1257 (2016). It is not enough that the movant merely cite new Supreme Court precedent, however. If the Fifth Circuit determines that the movant has cited a new rule of constitutional law but that the law is inapplicable to his case, it will deny authorization. E.g., In re ...


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