United States District Court, W.D. Louisiana, Lake Charles Division
REPORT AND RECOMMENDATION
KATHLEEN KAY MAGISTRATE JUDGE.
the court is a Motion to Vacate, Set Aside, or Correct
Sentence filed pursuant to 28 U.S.C. § 2255 by defendant
Clyde J. Pontefract. Doc. 235. This matter has been referred
to the undersigned for review, report, and recommendation in
accordance with 28 U.S.C. § 636.
has previously filed a § 2255 motion in this court,
attacking his 2011 conviction for production of child
pornography as charged in a superseding indictment from April
23, 2009. Docs. 217, 42. After receiving a response from the
government this court entered a judgment denying the motion
on the merits on October 16, 2014. Docs. 226, 227.
now brings the instant motion, alleging new grounds for
ineffective assistance of counsel and Brady claims
based on a letter he allegedly received in 2017. Doc. 235.
This letter is one sent in 2009 by Donald Washington, former
United States Attorney for the Western District of Louisiana,
relating to misconduct by the Allen Parish Sheriff's
Office and expressing Washington's office's
unwillingness to adopt “any criminal cases from Allen
Parish in which [the two officers involved] played a role in
the investigation.” Doc. 235, att. 1, p. 3.
conviction arose from investigations and searches conducted
in part by the Allen Parish Sheriff's Office. See,
e.g., doc. 60, att. 1 (briefing on second Motion to
Suppress). He alleges that one of the officers (Detective
Perkins) named in Washington's letter was involved in the
search of his trailer and engaged in police misconduct at
that time. Doc. 235, p. 4. He also maintains that he made
these allegations known to his attorneys but that they would
not listen, and that no one told him of Washington's
letter. Id. at 4-11.
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.
first § 2255 motion was adjudicated on the merits and so
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.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 movant 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.
to 28 U.S.C. § 2255(h), a second or successive §
must be certified ... by a panel of the appropriate court of
appeals to contain-
(1) newly discovered evidence that, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense;
(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
Detective Perkins played the role that Pontefract alleges in
his case, Pontefract may be able to satisfy the first prong
of this test. Accordingly, IT IS RECOMMENDED
that the motion [doc. 235] be transferred to the United
States Court of Appeals for the Fifth Circuit.
to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the
Federal Rules of Civil Procedure, the parties have fourteen
(14) days from receipt of this Report and Recommendation to
file any objections with the Clerk of Court. Timely
objections will be considered by the district judge prior to
a final ruling.
to file written objections to the proposed factual findings
and/or the proposed legal conclusions reflected in this
Report and Recommendation within fourteen (14) days following
the date of its service shall bar an aggrieved party from
attacking either the factual findings or the legal
conclusions accepted by the District Court, except upon
grounds of plain ...