United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
REBECCA RUTHERFORD UNITED STATES MAGISTRATE JUDGE.
case has been referred to the United States Magistrate Judge
pursuant to the provisions of Title 28, United States Code,
§ 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:
has filed two motions to vacate or reduce his sentence under
Fed. R. Crim. P. 35, (ECF Nos. 12, 13), and a motion for the
Court to request the United States Attorney consider
exercising her discretion to agree to an order vacating one
of Defendant's 18 U.S.C. § 924(c) convictions. (ECF
No. 9). For the reasons stated, Defendant's Rule 35
motions should be construed as successive petitions under 28
U.S.C. § 2255, and Defendant's remaining motion
should be denied.
was convicted of two counts of obstructing, delaying, and
affecting commerce by robbery in violation of 18 U.S.C.
§ 1951(a); two counts of using a firearm during a crime
of violence, in violation of 18 U.S.C. § 924(c); and two
counts of assaulting a federal officer, in violation of 18
U.S.C. § 111. On January 20, 1993, the District Court
sentenced Defendant to 533 months confinement. The Fifth
Circuit Court of Appeals affirmed. United States v.
Samuels, No. 93-1063 (5th Cir. Dec. 27, 1993).
has already filed four petitions to vacate, set-aside, or
correct his sentence under 28 U.S.C. § 2255. The first
petition was dismissed as untimely. United States v.
Samuels, No. 3:97-CV-1277-P (N.D. Tex. Dec. 1, 1997),
COA denied, No. 98-10014 (5th Cir. Feb. 4, 1999). The second,
third, and fourth petitions were dismissed as successive.
Samuels v. United States, No. 3:97-CV-2696-P (N.D.
Tex. Jan. 30, 1998), COA denied, No. 98-10874 (5th Cir.
1999); Samuels v. United States, 3:92-CR-319-P (N.D.
Tex. Jun. 28, 2006); Samuels v. United States,
3:16-CV-1475-P (N.D. Tex. June 1, 2016).
filed his current motions to vacate or correct sentence under
Fed. R. Crim. P. 35. He argues his sentence violates the Due
Process and Ex Post Facto Clauses.
Crim. P. 35 allows for correction of clear errors that affect
sentencing, if the motion to correct is filed within fourteen
days of sentencing. Here, Defendant failed to file his
motions under Rule 35 within fourteen days of his sentencing.
The Court therefore construes the Rule 35 motions as motions
to vacate, set-aside, or correct sentence pursuant 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, Publ. 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. The petitions should therefore be transferred
to the Fifth Circuit.
also has filed a motion for the Court to request that the
United States Attorney consider exercising her discretion to
agree to an order vacating one of Defendant's convictions
as unjust. Although Defendant may contact the Unites States
Attorney to seek this relief, the Court finds the motion
requesting this Court to contact the United States Attorney
is without merit and should be denied.
foregoing reasons, the Magistrate Judge recommends that
Defendant's motions to vacate or correct under Fed. R.
Crim. P. 35 (ECF Nos. 12, 13) be construed as petitions to
vacate, correct, or set aside sentence pursuant to 28 U.S.C.
§ 2255 and that those petitions be TRANSFERRED to the
United States Court of Appeals for the Fifth Circuit pursuant
to In re Epps, 127 F.3d 364, 365 (5th Cir. 1997).
The Magistrate Judge further recommends that Defendant's
motion (ECF No. 9) for the Court to request that the United
States Attorney consider exercising her discretion to agree
to an order vacating one of Defendant's convictions be
FOR SERVICE AND NOTICE OF RIGHT ...