United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
LAKE UNITED STATES DISTRICT JUDGE
October 24, 2016, defendant, Joseph Lamar Broussard, filed a
Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence By a Person in Federal Custody ("§
2255 Motion") (Civil Action No. H-16-3178) (Docket Entry
No. 571) .x The United States has filed a
Motion to Dismiss and Memorandum in Response to § 2255
Motion (Docket Entry No. 575), to which Broussard has filed a
Reply to United States Motion to Dismiss and Memorandum to
Broussard's 2255 Motion (Docket Entry No. 576).
4, 2012, Broussard filed a Motion Under 28 U.S.C. § 2255
to Vacate, Set Aside, or Correct Sentence By a Person in
Federal Custody ("First § 2255 Motion")
(Docket Entry No. 392). The First § 2255 Motion was
assigned Civil Action No. H-12-1699. On October 10, 2012, the
court entered a Memorandum Opinion and Order (Docket Entry
No. 425) granting the United States' Motion for
XA11 docket entry references are to Criminal No.
H-10-412. Summary Judgment and a Final Judgment dismissing
Civil Action No. H-12-1699 with prejudice (Docket Entry No.
426) . On January 3, 2013, the Court of Appeals for the Fifth
Circuit denied Broussard a certificate of appealability to
appeal the dismissal of his First § 2255 Motion (Order,
Docket Entry No. 447).
U.S.C. § 2255(h) states:
A second or successive motion must be certified as provided
in section 2244 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
provision and 28 U.S.C. § 2244(b)(3)(A) act as a
jurisdictional bar to a district court's consideration of
a successive habeas petition until the court of appeals has
authorized the district court to consider it. Because
Broussard's pending § 2255 Motion is successive and
Broussard has not obtained authorization from the United
States Court of Appeals for this court to consider it, the
court will dismiss the motion as successive.
§ 2255 Motion and his Reply Broussard argues that he is
entitled to seek relief under United States Sentencing
Guidelines Amendment 794, which was not issued until after
the dismissal of his First § 2255 Motion had become
final. Amendments to the Sentencing Guidelines do not apply
retroactively unless the United States Sentencing Commission
determines that the amendment is to apply retroactively.
See United States Sentencing Guidelines §§
lB1.10(a) (2) (A) and (d) . Because Amendment 794 is not
listed in § 1B1.10(d), the amendment does not apply
retroactively and, therefore, provides Broussard no basis for
relief. For the same reason, Amendment 794 provides no
justification for filing a successive § 2255 motion
without obtaining the authorization of the Court of Appeals.
the United States' Motion to Dismiss (Docket Entry No.
575) is GRANTED; Broussard's Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence By a
Person in Federal Custody (Docket Entry No. ...