USA v. Harold Damper

Filing

UNPUBLISHED OPINION ORDER FILED. [14-60907 Vacated and Rendered ] Judge: EBC , Judge: ECP , Judge: JWE Mandate pull date is 05/13/2015; denying leave to file a successive Sec. 2255 petition [14-60907]

Case: 14-60907

Document: 00513015683

Page: 1

Date Filed: 04/22/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________
No. 14-60907
___________________

United States Court of Appeals
Fifth Circuit

FILED
April 22, 2015

UNITED STATES OF AMERICA,

Lyle W. Cayce
Clerk

Plaintiff - Appellee
v.
HAROLD DAMPER,
Defendant - Appellant
_______________________
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 2:98-CR-5-1
_______________________
Before CLEMENT, PRADO, and ELROD, Circuit Judges.
PER CURIAM: *
In 1999, Harold Damper was convicted of possession with intent to
distribute cocaine base. We affirmed his conviction and sentence. In 2002, he
filed a motion to vacate his sentence under 28 U.S.C. § 2255. In 2006, the
district court granted in part and denied in part his motion. Damper filed an

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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

Case: 14-60907

Document: 00513015683

Page: 2

Date Filed: 04/22/2015

14-60907
untimely notice of appeal regarding his § 2255 motion. We dismissed this
appeal for lack of jurisdiction.
In November 2014, Damper filed the instant motion in district court,
purportedly to correct a clerical error in his Presentence Investigation Report
(“PSR”). The motion attacked “the validity” of a prior state conviction, as well
as his counsel’s failure to object to the use of Damper’s prior conviction to
enhance his sentence. He argued that “counsel negligence” contributed to “an
additional ten year sentence applied to Damper’s sentence.” Notably absent
from his motion was any citation to a clerical (rather than substantive) error
in his PSR.
The district court denied Damper’s motion. It noted that he “was given
an opportunity to object to the presentence report” when he was sentenced
fifteen years ago, and he has since filed numerous post-conviction motions. It
concluded that “[t]here comes a time when things become final and when you
fail to make an objection to something, it is finally waived.”
Although the district court did not consider its jurisdiction, “we must
always be sure of our appellate jurisdiction and, if there is doubt, we must
address it, sua sponte if necessary.” United States v. Key, 205 F.3d 773, 774
(5th Cir. 2000) (internal quotation marks omitted). Here, the gravamen of
Damper’s motion was clearly that he was attacking the validity of his sentence.
Despite the title of his motion, he did not claim that his PSR contained any
clerical errors. Instead, he argued that the district court made a substantive
error by considering a prior state conviction. Accordingly, the district court
should have construed the motion as a § 2255 motion. See 28 U.S.C. § 2255(a);
Tolliver v. Dobre, 211 F.3d 876, 877–78 (5th Cir. 2000). Because the § 2255
motion is a successive petition, the district court lacked jurisdiction to rule
upon it. Key, 205 F.3d at 774.

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Case: 14-60907

Document: 00513015683

Page: 3

Date Filed: 04/22/2015

14-60907
Because the district court lacked jurisdiction to rule on Damper’s motion,
we VACATE the judgment of the district court, and a judgment of dismissal
for want of jurisdiction is RENDERED. To the extent that Damper requests
leave to file a successive § 2255 petition, this request is DENIED because he
has failed to show that there is any newly discovered evidence or new rule of
constitutional law that would entitle him to this relief. See 28 U.S.C. § 2255(h).

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