In re Parker

575 F. App'x 415
Court of Appeals for the Fifth Circuit·Decided July 16, 2014·No. No. 14-50250·Published·Cited by 6 cases

Opinion

PER CURIAM: *

Andrew Maxwell Parker, federal prisoner # 08987-424, proceeding pro se, seeks authorization under 28 U.S.C. § 2255(h) to file a second or successive petition to vacate, set aside, or correct his sentence in the district court where the sentence was imposed. He argues that his petition is in fact not “second or successive” within the meaning of the statute. We determine that his petition would be successive, and deny his motion for authorization to file it.

I. Factual and Procedural Background

Parker pleaded guilty to eleven counts of an indictment charging him with conspiracy, wire fraud, money laundering, tax evasion, filing a false income tax return, and aiding and abetting related to various fraudulent loans guaranteed by the United States Export-Import Bank. Parker was sentenced to 60 months on the counts of conspiracy and tax evasion; 117 months on the counts of wire fraud, money laundering, and aiding and abetting; and 36 months on the counts of filing false income tax returns, all terms to be served concurrently. Parker was ordered to serve concurrent three-year periods of supervised release as to all counts, and he was ordered to pay $10 million in restitution and to forfeit real and personal property.

On direct appeal, this court rejected Parker’s challenge to his guilty plea. United States v. Parker, 372 Fed.Appx. 558, 560-63 (5th Cir.2010). Parker moved for relief under 28 U.S.C. § 2255. The magistrate judge concluded that the § 2255 motion was without merit and recommended that it be denied. However, the magistrate judge also determined that Parker correctly argued that he should not have been sentenced to three-year periods of supervised release as to counts 27 and 28, relating to the filing of false income tax returns under 26 U.S.C. § 7206, because those terms exceeded the statutory maximum of one year. The magistrate judge rejected Parker’s argument that a new sentencing hearing was required to correct the error. The district court adopted the [417] findings and conclusions of the magistrate judge, and entered judgment denying and dismissing the § 2255 motion. The district court also entered a third amended judgment correcting the periods of supervised release with respect to counts 27 and 28.1 Because all terms of supervised release are to run concurrently, Parker’s overall length of supervised release on all counts remains three years. This court dismissed a direct appeal of the amended judgment, reasoning that Parker raised no issue related to the amended judgment but instead sought to raise claims rejected by the district court in his § 2255 petition, and thus required a certificate of appeala-bility that he had not obtained. United States v. Parker, 520 Fed.Appx. 244, 245 (5th Cir.2013).

Parker filed another motion under § 2255, which the district court denied as successive and unauthorized, and, in the alternative, with prejudice as barred by limitations. Parker now moves in this court for leave to file a successive § 2255 motion.

II. Discussion

Before filing a second or successive § 2255 motion in the district court, a mov-ant must obtain leave from this court. 28 U.S.C. §§ 2255(h), 2244(b)(3)(A). This court may authorize the filing of a second or successive § 2255 motion only if the movant makes a prima facie showing that his claims rely on either:

(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; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

§ 2255(h); see also § 2244(b)(3)(C).

Parker makes no argument that his petition satisfies these requirements, but instead invokes Magwood v. Patterson, 561 U.S. 320, 130 S.Ct. 2788, 177 L.Ed.2d 592 (2010), and In re Lampton, 667 F.3d 585 (5th Cir.2012). Liberally construed, Parker’s argument is that he is not subject to the successive filing requirements because the third amended judgment constituted an intervening judgment that he has not yet challenged in a § 2255 motion. See Magwood, 561 U.S. at 339-42, 130 S.Ct. 2788.2 In his motion and petition, Parker asserts numerous substantive issues that call into question the constitutionality of all of his counts of conviction. None of his claims pertain specifically to the new terms of supervised release as to counts 27 and 28. According to Parker’s argument, the third amended judgment is a new, intervening judgment with regard to all his convictions and his sentence, and thus under Magwood, he may now challenge all the convictions and the entire sentence in a second § 2255 motion.

A § 2255 motion is not second or successive merely because it follows an earlier [418] motion. Magwood, 561 U.S. at 331-32,130 S.Ct. 2788; Lampton, 667 F.3d at 588. The phrase “second or successive” is “interpreted with respect to the judgment challenged.” Lampton, 667 F.3d at 588 (quoting Magwood, 561 U.S. at 332-33, 130 S.Ct. 2788). “As a consequence, where the granting of an initial habeas petition results in the issuance of a new, intervening judgment of conviction, ‘an application challenging the resulting new judgment is not second or successive’ within the meaning of the statute.” Lampton, 667 F.3d at 588 (quoting Magwood, 561 U.S. at 341-42, 130 S.Ct. 2788). We have previously stated that “Whether a new judgment has intervened between two habeas petitions, such that the second petition can be filed without this Court’s permission, depends on whether a new sentence has been imposed.” Lampton, 667 F.3d at 588 (citing Burton v. Stewart, 549 U.S. 147, 156, 127 S.Ct. 793, 166 L.Ed.2d 628 (2007) (equating “judgment” in criminal case with “sentence”)).

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In re Parker, 575 F. App'x 415 (5th Cir. 2014).

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