United States District Court, W.D. Louisiana, Lake Charles Division
G. JAMES UNITED STATES DISTRICT JUDGE
the Court is a “Motion to Reopen 2255
Proceedings” [Doc. No. 39] filed by defendant Lindsay
O. Freeman. Pursuant to the motion, Freeman seeks
reconsideration of this Court's May 28, 2019 Judgment,
which dismissed his original motion to vacate without
prejudice. [Doc. No. 38]. On July 23, 2019, the Court
referred the Motion to Reopen 2255 Proceedings to the
Magistrate Judge for Report and Recommendation
(“R&R”). [Doc. No. 40]. On August 27, 2019,
the Magistrate Judge issued her R&R and recommended the
motion be denied. [Doc. No. 44]. Freeman has filed objections
to the R&R. [Doc. No. 45]. For the reasons that follow,
the Court GRANTS the Motion to Reopen [Doc.
No. 39] and DENIES the motion to vacate
[Doc. Nos. 20, 34] on the merits.
August 12, 2004, Freeman and others were indicted for crimes
related to a series of casino robberies in South Louisiana
between December 2003 and July 2004. See United States v.
Ceasar, et al., No. 2:04-CR-20115 (W.D.La. Aug. 12,
2004), Doc. No. 1. Specifically, Freeman was charged in two
counts of a six-count indictment with the following offenses:
Conspiracy to Interfere with Commerce by Robbery, in
violation of 18 U.S.C. §§ 2 and 371 (Count
and Interference with Commerce by Robbery, in violation of 18
U.S.C. §§ 2 and 1951(a) (Count 2).Id. On
April 8, 2005, Freeman was charged in the above-captioned
case (2:05-CR-20058-01) in a one-count bill of information
with “Use, Carry, Possess, and Brandish a Firearm
During a Crime of Violence, ” in violation of 18 U.S.C.
§§ 2 and 924(c)(1)(A)(ii). On May 3, 2005, Freeman
pleaded guilty to Count 1 of the indictment (conspiracy to
commit robbery) and to Count 1 of the bill of information
(using, carrying or possessing a firearm during a crime of
violence). Freeman was sentenced on March 23, 2006 to sixty
months incarceration on the conspiracy charge and 120 months
on the firearm charge, with the sentences to run
consecutively. Freeman did not appeal his conviction or
sentence in either case.
about November 13, 2018, Freeman, proceeding pro se,
filed his first § 2255 motion, seeking relief from his
§ 924(c) conviction. [Doc. No. 20]. On November 29,
2018, counsel enrolled on his behalf and subsequently filed
an Amended Motion to Vacate. [Doc. Nos. 29, 34]. Pursuant to
his motion, Freeman alleged he was entitled to relief from
his firearm conviction and sentence under Sessions v.
Dimaya, 138 S.Ct. 1204 (2018). In Dimaya, the
Supreme Court extended the holding of
Johnson to a similar residual clause under the
Immigration and Nationality Act. Dimaya at 1210.
Thereafter, the Fifth Circuit held that the residual clause
of the definition of “crime of violence” in
§ 924(c), the statute under which Freeman was convicted,
is likewise unconstitutionally vague. United States v.
Davis, 903 F.3d 483, 486 (5th Cir. 2018), cert.
granted, 139 S.Ct. 782 (2019), and aff'd in
part, vacated in part, remanded, 139 S.Ct. 2319 (2019).
The government opposed Freeman's motion, arguing it was
untimely and that it failed on the merits. [Doc. No. 35].
April 5, 2019, the Magistrate Judge issued her report and
recommendation, finding in pertinent part:
As the Fifth Circuit recently recognized, neither
Johnson nor Dimaya starts the clock for
challenging a § 924(c) conviction under § 2255 -
even though the Court directed courts of appeals to
reconsider § 924(c) in light of Dimaya.
United States v. Williams, 897 F.3d 660, 662 (5th
Cir. 2018). Although the Fifth Circuit determined a few
months later in Davis, supra, that § 924(c) is
unconstitutionally vague under Dimaya and
Johnson, this does not yet amount to recognition of
the right by the United States Supreme Court.
. . . Accordingly, his motion must be dismissed as untimely.
Such dismissal should be without prejudice to his right to
reassert the claim if the Supreme Court upholds the Fifth
Circuit's ruling in Davis, or otherwise
expressly invalidates the residual clause of § 924(c).
[Doc. No. 36 at 4]. On May 28, 2019, the Court adopted the
R&R and dismissed the motion as untimely without
prejudice to Freeman's right to reassert the motion
“in the event that the United States Supreme Court
invalidates the residual clause of 18 U.S.C. §
924(c).” [Doc. No. 38].
about July 8, 2019, Freeman filed the pending pro se
“Motion to Reopen 2255 Proceedings” [Doc. No.
39], asserting “[o]n June 24, 2019, the United States
Supreme Court held section 924(c) unconstitutionally vague in
United States v. Davis, No. 18-431, ” thereby
warranting relief under § 2255. [Doc. No. 39 at 2]. The
Court again referred the motion to the Magistrate Judge for
R&R. On August 27, 2019, the Magistrate Judge issued her
R&R and recommended that the motion be denied. [Doc. No.
44]. In the R&R, the Magistrate Judge construes the
motion as a motion for reconsideration and finds the motion
to be untimely under Fed.R.Civ.P. 59. Alternatively, the
Magistrate Judge finds that even if construed under
Fed.R.Civ.P. 60(b), the Court is without authority to grant
the relief requested, reasoning, “The Fifth Circuit has
expressly found that ‘[a] change in decisional law
after entry of judgment does not constitute exceptional
circumstances and is not alone grounds for relief from a
final judgment under Rule 60(b)(6).” Id. at 2
(quoting Adams v. Thaler, 679 F.3d 312, 319-20 (5th
Cir. 2012)). Freeman has timely objected to the
R&R, and the motion is now ripe for ruling.
reasons that follow, the Court finds that the motion should
be construed as a Rule 60(b)(6) motion. See Castro v.
United States, 540 U.S. 375, 381 (2003) (explaining that
federal courts may “ignore the legal label that a pro
se litigant attaches to a motion and recharacterize the
motion in order to place it within a different legal
category”). “When faced with a Rule 60(b) motion
filed in response to the denial of an application for habeas
relief, the district court must first determine whether the
petitioner is only seeking Rule 60(b) relief or is attempting
to file a second or successive habeas application.”
Webb v. Davis, __ F.3d __, 2019 WL 5205899, *3 (5th
Cir. 2019) (citing Gonzalez v. Crosby, 545 U.S. 524,
531-32 (2005)); see also United States v. Hernandes,
708 F.3d 680, 681 (5th Cir. 2013). If the petitioner is
attempting to file a second or successive habeas application,
he must first obtain authorization from the appropriate
appellate court before he may proceed. Webb at *3.
If he is only seeking Rule 60(b) relief, appellate court
authorization is not required. Id. “A
purported Rule 60(b) motion should be construed as a
successive habeas application when it raises a new theory of
relief or disputes the district court's substantive
resolution of a claim.” Id. “In
contrast, a Rule 60(b) motion that attacks ‘some defect
in the integrity of the federal habeas proceedings' or a
procedural ruling that precluded a merits determination
should not be construed as an unauthorized successive habeas
application.” Id. (quoting Gonzalez
matter, the Court dismissed Freeman's original §
2255 motion as untimely, not because it was filed too late,
but because it was filed too early. Freeman's motion was
filed too early, because the validity of § 924(c)(3)(B)
had not yet been addressed by the Supreme
Court.See 28 U.S.C. § 2255(f)(3);
United States v. Williams, 897 F.3d 660, 662 (5th
Cir. 2018). Therefore, the Court did not reach the merits of
Freeman's claim, and the original motion was dismissed
without prejudice. Accordingly, the Court finds Freeman's
motion is not considered a second or successive § 2255
motion and does not require a certificate of appealability
from the Fifth Circuit. Gonzalez, 545 U.S. at 532
n.4; U.S. v. Williams, 194 F.3d 1308, *1 (5th Cir.
1999); Stewart v. Martinez-Villareal, 523 U.S. 637,
644-45 (1998) (a habeas petitioner's claim raised for the
second time after his first claim was dismissed without
prejudice as premature was not a “second or
successive” application under AEDPA); Moreland v.
Robinson, 813 F.3d 315, 322-25 (6th Cir. 2016) (Where a
Rule 60(b) motion is filed after district court dismisses
original petition, but before the period to appeal the
district court's judgment has expired, the motion is not
a second or successive application).
the Court turns to the merits of Freeman's
petition. While the determination of whether or not
this Court has jurisdiction to address the substance of
Freeman's claim required a lengthy analysis, the merits
are easily resolved. As previously stated, on May 3, 2005,
Freeman pleaded guilty to conspiracy to commit robbery in
violation of 18 U.S.C. § 371 (Count 1 of the Indictment
in No. 2:04-CR-20115) and to using and carrying a firearm
during and in relation to a crime of violence in violation of
§ 924(c)(1) (Count 1 of the bill of information in the
pending case). The predicate offense for Freeman's 924(c)
conviction was not conspiracy to commit robbery, but
rather, was “armed robbery of the Gold Mine Casino,
1671 Highway 190, Eunice, Louisiana” on December 10,
2003. [Doc. No. 5-3 at 1; see also Doc. No. 1; Doc.
No. 5-4; and No. 2:04-CR-20115, Doc. No. 583 at 57-58].
Unlike conspiracy to commit Hobbs Act robbery, interference
with commerce by robbery satisfies the elements clause of
924(c). See United States v. Buck,847 F.3d 267,
274-75 (5th Cir. 2017); United States v. Jones, 935
F.3d 266, 271 (5th Cir. 2019); see also U.S. v.
Ramos-Rodriguez,136 F.3d 465, 467 (5th Cir. 1998) (a
conviction under 924(c) does not require conviction on an
underlying crime of violence, and even acquittal of the
predicate offense will ...