United States District Court, E.D. Louisiana
ORDER AND REASONS
ZAINEY UNITED STATES DISTRICT JUDGE.
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).
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).
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.
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).
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
(Rec. Doc. 600-1 at 3-4).
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.
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).
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
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.
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 ...