In re: Lucious Gordon

Filing

UNPUBLISHED OPINION ORDER FILED. [12-31033 Affirmed ] Judge: PEH , Judge: PRO , Judge: LHS; denying as unnecessary motion to file successive petition filed by Movant Mr. Lucious Gordon [7238017-2] [12-31033]

Case: 12-31033

Document: 00512130126

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Date Filed: 01/30/2013

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
January 30, 2013

No. 12-31033
Summary Calendar

Lyle W. Cayce
Clerk

IN RE: LUCIOUS GORDON,

Movant

Motion for an order authorizing the
United States District Court for the
Eastern District of Louisiana to consider
a successive 28 U.S.C. § 2254 application

Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Lucious Gordon, Louisiana prisoner #131312, has filed a motion for
authorization to file a successive application for a writ of habeas corpus. For the
following reasons, we deny his motion as unnecessary.
FACTS AND PROCEDURAL HISTORY
In 1998, a jury convicted Gordon of possessing heroin. Gordon was
sentenced to life in prison as a habitual offender. Gordon’s conviction and
sentence were affirmed on direct appeal, and the Louisiana Supreme Court
declined review. Gordon then sought post-conviction relief in the state courts

*

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.

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and was denied.
In 2004, Gordon filed an application under 28 U.S.C. § 2254 in federal
district court. He alleged (1) the State illegally used peremptory challenges to
exclude jurors on the basis of race; (2) evidence was improperly admitted at trial;
(3) he received ineffective assistance of counsel; and (4) he was wrongly
adjudicated a habitual offender. The district court denied the application in
November 2006. This court dismissed Gordon’s appeal as untimely in August
2007.
While that federal litigation was proceeding, the Louisiana legislature
amended the statute under which Gordon was sentenced. That amendment was
prospective only, but the legislature later made the more lenient penalty
provisions retroactive. See LA. REV. STAT. § 15:308,1 effective May 16, 2006.

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Section 15:308 provided:

A. (1) The legislature hereby declares that the provisions of Act No. 403 of the
2001 Regular Session of the Legislature provided for more lenient penalty
provisions for certain enumerated crimes and that these penalty provisions
were to be applied prospectively.
(2) The legislature hereby further declares that Act No. 45 of the 2002 First
Extraordinary Session of the Legislature revised errors in penalty provisions for
certain statutes which were amended by Act No. 403 of the 2001 Regular
Session of the Legislature and that these revisions were to be applied
retroactively to June 15, 2001, and applied to any crime committed subject to
such revised penalties on and after such date.
B. In the interest of fairness in sentencing, the legislature hereby further
declares that the more lenient penalty provisions provided for in Act No. 403 of
the 2001 Regular Session of the Legislature and Act No. 45 of the 2002 First
Extraordinary Session of the Legislature shall apply to the class of persons who
committed crimes, who were convicted, or who were sentenced according to the
following provisions: . . . R.S. 15:529.1(A)(1)(b)(ii) and (c)(ii) . . . prior to June 15,
2001, provided that such application ameliorates the person’s circumstances.
C. Such persons shall be entitled to apply to the Louisiana Risk Review Panel
pursuant to R.S. 15:574.22.
Subsection C has been repealed. 2012 La. Sess. Law Serv. 123 (West).

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In May 2006, Gordon filed a motion in the state district court, arguing that
his sentence should be reduced according to Section 15.308. In July 2006, the
state district court denied the motion without a written opinion. In 2007, the
Louisiana Supreme Court held that Section 15.308 did not authorize a court to
reduce prisoners’ sentences; instead, prisoners were required to apply to the Risk
Review Panel for relief. State v. Dick, 951 So. 2d 124, 132-33 (La. 2007).
After the Dick decision was released, Gordon filed in state district court
what he termed a motion to correct an illegal sentence. Gordon asserted that the
Louisiana Supreme Court’s Dick decision failed to recognize that the delegation
of sentencing to the executive branch violated separation of powers and violated
his rights to due process and equal protection. In July 2011, the state district
court denied his motion. Gordon then appealed to the Fourth Circuit Court of
Appeal, which denied relief in September 2011 based on Dick. In June 2012, the
Louisiana Supreme Court denied relief without a written opinion. In September
2012, Gordon filed a Section 2254 application in the United States District Court
for the Eastern District of Louisiana. In October, the district court held that
Gordon was attempting to file a successive application. Consequently, that court
transferred the case to this court so that Gordon could seek authorization to file
his application. See 28 U.S.C. § 1631.
DISCUSSION
An inmate seeking to file a successive Section 2254 application must first
obtain an order from the relevant court of appeals authorizing its filing in
district court. 28 U.S.C. § 2244(b)(3)(A). If the application is successive, the
appellate court may allow the claim to proceed if it “relies on a new rule of
constitutional law, made retroactive to cases on collateral review by the Supreme
Court,” or the facts underlying the claim were previously undiscoverable and
meet certain other requirements. § 2244(b)(2). Those provisions do not apply
if the petition is not actually successive. An application is successive “when it:
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1) raises a claim challenging the petitioner’s conviction or sentence that was or
could have been raised in an earlier petition; or 2) otherwise constitutes an
abuse of the writ.” In re Cain, 137 F.3d 234, 235 (5th Cir. 1998).
We need to identify Gordon’s claim before deciding whether it could have
earlier been brought. His pro se pleadings in the district court and here are not
written with much precision. We interpret pro se pleadings with liberality.
Haines v. Kerner, 404 U.S. 519, 520 (1972). Gordon argues that Section 15:308
is retroactive, perhaps argues that the Louisiana Supreme Court’s Dick decision
is a new rule of constitutional law made retroactive by that court, and claims he
has been denied the benefits of that new statute. In the district court, Gordon
set out the Louisiana statutory change. In a lengthy attachment that he titled
“Supporting Facts,” Gordon set out details about his sentence, gave his
understanding of why he would be entitled to a reduced sentence under the
statutory change, and then claimed his sentence “does not comply with the New
Amendment” and other statutory changes.
The only legal claim in these filings is that Gordon is entitled to a reduced
sentence under the changes in the law in Louisiana. He does not explicitly
renew the constitutional claims he made in state court about the procedure that
was established (i.e., requiring resort to the Risk Review Panel). Prior to the
Dick decision, one intermediate Louisiana court had held that applying to that
panel was not the exclusive remedy for an inmate under Section 15:308; the
state Supreme Court disagreed and held that only the Risk Review Panel could
reduce a sentence under Section 15:308. Dick, 951 So. 2d at 129. In May 2012,
though, the Louisiana legislature repealed the provision, Subsection C, that
provided for review by the Panel. 2012 La. Sess. Law Serv. 123 (West).
It is at least clear that Gordon is making a claim that arises from Section
15:308. That section became effective on May 16, 2006. LA. REV. STAT. § 15:308.
Though long before that date a magistrate judge had recommended denial of
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Gordon’s application, the district court did not adopt that recommendation until
November 29, 2006. Between May and November, Gordon might have filed for
leave to amend his application, though such leave could easily have been denied.
See United States v. Armstrong, 951 F.2d 626, 630 (5th Cir. 1992). We need not
decide how this timing affects Gordon’s ability to have added a claim about the
new statute. That is because everything he has filed in federal or state court
indicates his challenge to Section 15:308 depends on the Dick decision, handed
down in January 2007 after Gordon’s first Section 2254 application had been
denied. In addition, any claim that it is unconstitutional to give the Risk Review
Panel the sole authority over potential reductions in sentencing is affected by the
legislature’s repeal of that provision in 2012. Whatever claims might exist as to
those events, they did not exist prior to the time Gordon’s first application was
denied in November 2006.
We do not under Section 2244(b)(3)(A) determine whether an inmate has
an intelligible, viable, or exhausted claim. We only determine whether he has
a successive one, and, if so, whether he may nonetheless present it in district
court. Gordon’s application is not successive. Consequently, his motion for
permission to file a successive petition is DENIED as unnecessary. Gordon may
file his petition directly in the district court.

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