United States District Court, N.D. Texas, Dallas Division
FINDINGS. CONCLUSIONS AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
D. SSTICKNEY UNITED STATES MAGISTRATE JUDGE.
cause of action was referred to the United States Magistrate
Judge pursuant to the provisions of Title 28, United States
Code, Section 636(b), as implemented by an order of the
United States District Court for the Northern District of
Texas. The Findings, Conclusions and Recommendation of the
United States Magistrate Judge follow:
the Court is Petitioner's motion for relief from judgment
under Fed.R.Civ.P. 60(b). For the foregoing reasons, the
Court finds the motion should be construed as a successive
petition under 28 U.S.C. § 2255 and transferred to the
Fifth Circuit Court of Appeals.
was one of fourteen defendants who were in indicted on
charges related to an illegal kickback scheme between
real-estate developers and officials with the City of Dallas,
Texas. Petitioner was charged in Counts Ten through Twelve
(conspiracy to commit bribery and specific counts of
bribery), Counts Fifteen and Sixteen (conspiracy to commit
extortion and one count of extortion), Count Eighteen
(conspiracy to commit honest-services wire fraud), and Count
Nineteen (conspiracy to commit money laundering). On October
5, 2009, a jury convicted Petitioner on all seven counts, but
the district court entered a judgment of acquittal on Count
Eighteen. On February 26, 2010, the court varied below the
guideline range of 292 to 365 months and sentenced Petitioner
to 168 months in prison. On August 2, 2013, the Fifth Circuit
Court of Appeals affirmed Petitioner's conviction and
August 5, 2014, Petitioner filed a petition to vacate,
set-aside or correct sentence pursuant to 28 U.S.C. §
2255. On September 1, 2015, the magistrate judge entered
findings, conclusions, and a recommendation that the petition
be denied. On September 5, 2015, Petitioner filed an
interlocutory appeal with the Fifth Circuit Court of Appeals.
On September 21, 2015, the district court denied the petition
on the merits. On December 16, 2015, the Fifth Circuit
dismissed Petitioner's interlocutory appeal for lack of
jurisdiction. Lee v. United States, No. 15-10887
(5th Cir. Dec. 16, 2015).
March 22, 2017, Petitioner filed the instant Rule 60(b)
motion. He argues he has new evidence that the government
failed to disclose evidence in violation of Brady v.
Maryland, 373 U.S. 83 (1963). Petitioner's motion
attacks the judgment of conviction in his criminal case. Such
a motion is properly construed as a petition under to 28
U.S.C. § 2255. See Jeffers v. Chandler, 253
F.3d 827, 830 (5th Cir. 2001) ("Section 2255 provides
the primary means of collaterally attacking a federal
conviction and sentence."); Cox v. Warden, Fed.
Detention Center, 911 F.2d 1111, 1113 (5th Cir. 1990)
Antiterrorism and Effective Death Penalty Act of 1996 limits
the circumstances under which a federal prisoner may file a
second or successive motion for post-conviction relief.
Antiterrorism and effective death penalty act, Pub. L.
104-132, 110 Stat. 1214 (1996). A defendant must show that
the successive motion is based on: (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 him 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.
28 U.S.C. § 2255. This determination must be made by a
three-judge panel of the court of appeals before defendant
files his motion in district court. 28 U.S.C. §§
2241 and 2255.
Fifth Circuit has not issued an order authorizing this Court
to consider the successive motion. Petitioner must obtain
such an order before another motion for post-conviction
relief is filed.
Court recommends that the Rule 60(b) motion be construed as a
petition to vacate, set-aside, or correct sentence under 28
U.S.C. § 2255 and that the petition be TRANSFERRED to
the United States Court of Appeals for the Fifth Circuit
pursuant to In re Epps, 127 F.3d 364,
FOR SERVICE AND NOTICE OF RIGHT TO
of this report and recommendation shall be served on all
parties in the manner provided by law. Any party who objects
to any part of this report and recommendation must file
specific written objections within 14 days after being served
with a copy. See 28 U.S.C. § 636(b)(1);
Fed.R.Civ.P. 72(b). In order to be specific, an objection
must identify the specific finding or recommendation to which
objection is made, state the basis for the objection, and
specify the place in the magistrate judge's report and
recommendation where the disputed determination is found. An
objection that merely incorporates by reference or refers to
the briefing before the magistrate judge is not specific.
Failure to file specific written objections will bar the
aggrieved party from appealing the factual findings and ...