In re: Andrew Parker

Filing

UNPUBLISHED OPINION ORDER FILED. [14-50250 Affirmed ] Judge: PEH , Judge: JLD , Judge: JEG; denying motion to file successive petition filed by Movant Mr. Andrew Maxwell Parker [7589602-2]; denying motion to recall mandate filed by Movant Mr. Andrew Maxwell Parker [7589602-3]; denying motion for hearing on the issues filed by Movant Mr. Andrew Maxwell Parker [7589602-4], denying motion for attorney's fees filed by Movant Mr. Andrew Maxwell Parker [7589602-5], denying motion for discovery filed by Movant Mr. Andrew Maxwell Parker (ISSUED AS AND FOR THE MANDATE) [7589602-6] [14-50250]

Case: 14-50250

Document: 00512700826

Page: 1

Date Filed: 07/16/2014

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

FILED

No. 14-50250

July 16, 2014
Lyle W. Cayce
Clerk

In re: ANDREW MAXWELL PARKER,
Movant

Motion for an order authorizing the United States
District Court for the Eastern District of Texas
to consider a successive 28 U.S.C. § 2255 motion
Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
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
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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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 F. App’x 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 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
The judgment provided: “As pronounced on October 27, 2008, the defendant is
sentenced as provided in pages 2 through 7 of this Judgment. The sentence is imposed
pursuant to the Sentencing Reform Act of 1984. *This judgment is amended to correct
the terms of supervised release as to Counts 27 and 28 pursuant to the Court’s order
of March 5, 2012.”
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§ 2255 petition, and thus required a certificate of appealability that he had not
obtained. United States v. Parker, 520 F. App’x 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 movant 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 (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. 2 In

Magwood was a 28 U.S.C. § 2254 case. 561 U.S. at 330-32. “The phrase [second or
successive] appears in both § 2244 and § 2255, and it carries the same meaning in both
provisions.” Lampton, 667 F.3d at 588 (applying Magwood in § 2255 context).
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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 motion. Magwood, 561 U.S. at 331-32; 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 33233). “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). 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 (2007) (equating “judgment” in criminal case with “sentence”)).
However, the fact that a judgment, including a sentence, is amended as
a result of an initial § 2255 petition is not necessarily sufficient to render it a
“new, intervening judgment” under Magwood. See Lampton, 667 F.3d at 58788. We must consider the impetus and effect of the amended judgment. For
example, in Lampton, the petitioner’s one conspiracy conviction was
overturned on a § 2255 motion on double jeopardy grounds, while his three
convictions for engaging in a continuing criminal enterprise (CCE) were
upheld. Id. 586-87. Lampton had been sentenced to life imprisonment on all
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four convictions. Id. at 587. When Lampton filed another § 2255 motion, he
contended that it was not successive because the criminal judgment had been
amended. Id. at 587. This court held that the motion was successive because,
despite the amended judgment, Lampton was still serving the same life
sentence for the CCE conviction, and his “prior § 2255 petition did not yield a
new judgment of conviction.” Id. at 589.
In the instant case, the district court vacated the three-year periods of
supervised release as to counts 27 and 28 because those terms exceeded the
statutory maximum of one year, and it entered a third amended judgment
imposing one-year periods of supervised release as to those counts and left
intact the sentences imposed for the other counts of conviction. This amended
judgment is unlike those that courts have found to constitute new, intervening
judgments. In Magwood itself, the second-in-time habeas petition followed a
grant of habeas relief and a resentencing proceeding. 561 U.S. at 323; see also
Wentzell v. Neven, 674 F.3d 1124, 1126-28 (9th Cir. 2012) (holding that second
habeas petition not successive under Magwood where it was filed after state
courts granted partial relief and issued amended judgment); Johnson v. United
States, 623 F.3d 41, 45-46 (2d Cir. 2010) (“Magwood applies in a situation
where, as here, a prisoner who successfully challenged his judgment of
conviction in a prior § 2255 motion files a subsequent § 2255 motion”). 3 Here,

Magwood left open the question of whether a petitioner who obtains a grant of
habeas relief as to his sentence is able to challenge his underlying convictions in a subsequent
§ 2255 motion. See Magwood 561 U.S. at 341 & n.16; compare Wentzell, 674 F.3d at 1126-28
(holding that successive petition rules did not apply to second-in-time petition filed after state
courts granted partial relief and issued amended judgment, even though current claims
concerned “unaltered components” of original judgment and could have been raised in prior
petition) and Johnson, 623 F.3d at 45-46 (“[W]here a first habeas petition results in an
amended judgment, a subsequent petition is not successive regardless of whether it
challenges the conviction, the sentence, or both.”), with Suggs v. United States, 705 F.3d 279,
282-85 (7th Cir. 2013) (holding that second-in-time § 2255 motions filed after resentencing
“are second or successive when they challenge the underlying conviction” even though they
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although the initial § 2255 petition prompted the amendment to the judgment,
the district court did not grant habeas relief but merely corrected the
petitioner’s sentence. See Parker, 520 F. App’x at 245. There was no need for
the district court to make any reassessment of the sentencing evidence or law
in correcting the judgment. See Magwood, 561 U.S. at 339; Lampton, 667 F.3d
at 588-89. The amended judgment is not the result of a new proceeding or
resentencing, and the amended judgment had no effect on the overall length of
Parker’s supervised release. See Magwood, 561 U.S. at 339, 341-42; Lampton,
667 F.3d at 588-89. Therefore, the district court did not enter a new sentence
as contemplated by Magwood.

See Lampton, 667 F.3d at 589.

In the

circumstances presented by this case, the amended judgment is not a new,
intervening judgment under Magwood and Lampton.
Parker’s petition is thus a “second or successive petition” within the
meaning of § 2255. He makes no argument that if his petition is deemed
successive, it satisfies the requirements of § 2255(h). Parker’s motion for
authorization to file this second § 2255 petition is denied.
III. Conclusion
Parker’s motion for authorization to file a successive § 2255 petition is
DENIED. Parker has also moved to recall the mandate of the third amended
judgment, for a hearing, for a refund of attorney fees, and for leave to conduct
discovery. We likewise DENY those requests.

“are not second or successive when they allege errors made during the resentencing”). In
light of our holding, we do not reach this question.

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