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United States v. Lash

United States District Court, E.D. Louisiana

October 26, 2018

UNITED STATES OF AMERICA
v.
TERRANCE LASH

         SECTION: "A"

          ORDER AND REASONS

          JAY C. ZAINEY UNITED STATES DISTRICT JUDGE.

         Terrance Lash, federal prisoner #23905-304, moves the Court to void the adverse judgment entered on his 28 U.S.C. § 2255 motion. (Rec. Doc. 679).

         On December 16, 2004, a grand jury sitting in the Eastern District of Louisiana returned a seven-count Sixth Superseding indictment against Terrance Lash for various offenses related to a drug conspiracy, firearms, and the murder of a federal witness. (Rec. Doc. 241). Following a rigorous battle of pre-trial motions and hearings, Lash was tried on June 12, 2006. The trial lasted two weeks and Lash testified in his own defense. On June 23, 2006, the jury returned its unanimous verdict convicting Lash on all seven counts. (Rec. Doc. 468). On December 5, 2006, the Court sentenced Lash to life imprisonment, as to Counts 1, 3, 4, 5, and 6, a term of 240 months as to Count 2, and a term of 120 months as to Count 7, to be served concurrently. (Rec. Doc. 512). The complete factual background leading up to Lash's indictment and trial is contained in the Fifth Circuit's opinion affirming Lash's conviction and sentence on all grounds. (Rec. Doc. 600-1).

         Lash moved for post-conviction relief and on December 27, 2010, the Court entered its reasons for denying Lash's § 2255 motion. (Rec. Doc. 643). On May 13, 2011, the Court entered judgment accordingly, (Rec. Doc. 650), after denying Lash's Rule 59(e) motion for reconsideration, (Rec. Docs. 647, 649).

         Lash filed a motion to void the judgment pursuant to Federal Rule of Civil Procedure 60(b)(4), and the Court denied that motion on June 28, 2012. (Rec. Doc. 660).

         On June 18, 2018, Lash filed the instant Motion to “Void Judgment” of Original 28 U.S.C. § 2255 Pursuant to Rule 60(b)(4) (“[T]he court may relieve a party or its legal representative from a final judgment . . . for the following reason[]: . . . “the judgment is void.”) (Rec. Doc. 679). Lash argues that the judgment [denying his original § 2255 motion] is void because the Court denied Lash due process of law by refusing to hold an evidentiary hearing in 2010 when it denied relief. Lash contends that the factual allegations contained in his Affidavit of Facts/Declaration of Truth (executed July 24, 2009) (Rec. Doc. 629 at pp. 15-19) (“AOF/DOT”), triggered the requirement for an evidentiary hearing. The AOF/DOT contains Lash's recollections regarding the substance of the conversations between himself and Rahsaan Johnson in November and December 2003 that were recorded by the Government but were inaudible. The inaudible recordings were not admitted at trial but an inculpatory statement made to Johnson (and recorded) on February 17, 2004 was admitted against Lash at trial. The court of appeal summarized the relevant transactions as follows:

In November and December 2003, Johnson attempted to record conversations with Lash while they were in a holding cell, awaiting hearings in the case before Judge Zainey. Both attempts failed due to poor sound quality. Johnson's third attempt, on 17 February 2004, was successful; Lash discussed his role in the [Demetra] Norse murder and named [Donald] Sylvester as Norse's assassin. That March, the Government confronted Lash and his attorney with the recording.

(Rec. Doc. 600-1 at 3-4).

         As the Court noted when denying Lash's 2012 motion to void the judgment, Lash has challenged the admissibility of the 2004 statement at every phase of this case--pre-trial, during trial, on appeal, via his original § 2255 motion, and the motion to reconsider. (Rec. Doc. 660). This Court has repeatedly held that the statement was not obtained in violation of Lash's constitutional rights and this conclusion was affirmed on appeal.

         On direct appeal, Lash argued that the inculpatory 2004 recorded statement should have been excluded because it was not a voluntary statement. Lash argued that the statement was not voluntary because Johnson had intimidated and threatened him. (No. 07-30009, Brief for Appellant at 28). The Fifth Circuit rejected this contention, characterizing Lash's claims of coercion as “conclusory, ” and noting that Lash's reactions during the conversation were not objectively indicative of a person succumbing to threats. (Rec. Doc. 600-1, Opinion at 9).

         Lash now points out that neither the court of appeal nor this Court considered the unadmitted inaudible recordings from 2003 when assessing his coercion argument. And given that the AOF/DOT describes Lash's recollections as to the substance of those inaudible conversations-in particular the threats that Johnson allegedly made-the factual allegations in the AOF/DOT remain unchallenged. Lash therefore contends that the Court abused its discretion in not holding an evidentiary hearing in 2010 before denying his § 2255 motion.

         In order to file a second or successive § 2255 motion with the district court, 28 U.S.C. § 2244 provides that an applicant must first obtain authorization from the court of appeals. United States v. Fulton, 780 F.3d 683, 686 (5th Cir. 2015) (citing 28 U.S.C. § 2244(b)(3)). The lack of such authorization is a jurisdictional bar to the district court's consideration, and a district court may dispose of applications lacking authorization through dismissal. Id. (citing Williams v. Thaler, 602 F.3d 291, 301 (5th Cir. 2010); United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000)); United States v. Rich, 141 F.3d 550, 551 (5th Cir. 1998).

         But a second-in-time petition does not necessarily equate to one which is successive within the meaning of § 2255. Fulton, 780 F.3d at 686 (citing In re Cain, 137 F.3d 234, 235 (5th Cir. 1998)). Instead, a later petition is successive when it “raises a claim challenging the petitioner's ...


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