Travis v. USA
Filing
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OPINION AND ORDER: Court DISMISSES FOR LACK OF JURISDICTION Motion for Relief Pursuant to Title 28 U.S.C. § 2255(f)(3)(f)(4). The Court DECLINES to issue a certificate of appealability. Signed by Judge Rudy Lozano on 8/30/2013. cc: Travis (tc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNITED STATES OF AMERICA,
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Plaintiff,
v.
LATOYA TRAVIS,
Defendant.
No. 2:11-CR-155
(2:13-CV-271)
OPINION AND ORDER
This matter is before the Court on the “Motion for Relief
Pursuant
to
Title
28
U.S.C.
§
2255(f)(3)(f)(4),”
defendant, Latoya Travis, on August 5, 2013.
(DE #53.)
filed
by
For the
reasons set forth below, the motion is DISMISSED for lack of
jurisdiction.
Further,
this
The Clerk is ORDERED to DISMISS the civil case.
Court
declines
to
issue
a
certificate
of
appealability.
BACKGROUND
On January 20, 2011, this Court sentenced Defendant, LaToya
Travis (“Travis”), to a 42 month term of imprisonment in cause
number 2:08-CR-156.
At the sentencing hearing, the Court allowed
her to temporarily remain on bond but ordered that she report to
the Bureau of Prisons on February 22, 2011.
Travis failed to do
so, which led to an indictment in the instant criminal cause
number.
Travis
entered
into
a
written
plea
agreement
with
the
government on April 26, 2012, wherein she waived her right to
challenge her conviction or sentence on any ground, including any
claim of ineffective assistance of counsel unless the claimed
ineffective assistance of counsel relates directly to the waiver or
its negotiation.1
In exchange, the Government agreed to make a
non-binding recommendation to the Court that Travis receive a
reduction for acceptance of responsibility and that she receive a
sentence at the mid-level of the applicable Sentencing Guidelines
range.
The plea agreement was signed by Travis, her attorney,
Visvaldis Kupsis, and the attorney for the Government, Gary Bell.
A change of plea hearing was held before Magistrate Judge
Andrew P. Rodovich on May 14, 2012; the hearing was digitally
recorded, and Judge Rodovich subsequently submitted findings and
recommendations to this Court.
On May 31, 2012, pursuant to
Travis’
and
plea
and
the
findings
recommendations
of
Judge
Rodovich, this Court adjudged Travis guilty of one count of Failure
to Surrender for Service of Sentence in violation of Title 18
U.S.C. section 3146(a)(2). On August 2, 2012, Travis was sentenced
to a fifteen (15) month prison term, to run consecutive to the term
of imprisonment imposed in cause number 2:08-CR-156, plus a one (1)
year term of supervised release, to run concurrently to the period
1
The written plea agreement is found at DE #8.
2
of supervision ordered in 2:08-CR-156.
This sentence was within
the Sentencing Guidelines range of twelve (12) to eighteen (18)
months.
On September 20, 2012, Travis filed a section 2255 motion with
the Court, claiming that she was entitled to a reduction in her
sentence
because:
(1)
she
was
confined
in
harsh
pretrial
conditions; (2) she lived in substandard conditions while awaiting
sentencing; (3) she did not see her psychiatrist; and (4) she was
subjected to degrading conditions while being improperly placed on
suicide watch.
That motion was denied, and this Court declined to
issue a certificate of appealibility.
(DE #39.)
Defendant Travis
subsequently filed a Notice of Appeal (DE #41), and her appeal is
currently pending before the Seventh Circuit Court of Appeals in
cause number 13-1690.
(See DE #43.)
Travis filed the instant
“Motion for Relief Pursuant to Title 28 U.S.C. § 2255(f)(3)(f)(4)”
on August 5, 2013.
(DE #53.)
In it she argues that she received
a two (2) point “enhancement,” which increased her sentencing range
in
violation
of
the
law
because
such
“enhancement”
was
not
“submitted to the jury and forund [sic] beyond a reasonable doubt.”
(Id. at 1-2.)
Travis claims that her sentence “should have, and
would have been much lower than 15 months.”
(Id. at 2).
DISCUSSION
Following a direct appeal, a defendant generally has one
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opportunity to challenge her conviction and sentence.
Suggs v.
United States, 705 F.3d 279, 281-82 (7th Cir. 2013); 28 U.S.C. §
2255(a), (h).
Should a defendant wish to file a second or
successive section 2255 motion challenging that same conviction or
sentence, she must first gain authorization to do so from the court
of
appeals;
otherwise,
the
district
jurisdiction to consider the motion.
U.S.C. §§ 2244(a)-(b), 2255(h).
court
does
not
have
Suggs, 705 F.3d at 282; 28
In general, only those successive
motions which challenge the underlying conviction and present newly
discovered evidence of defendant’s innocence or rely on a new
retroactive constitutional law will be certified by the court of
appeals for district court review.
U.S.C. § 2255(h).
Suggs, 705 F.3d at 282-83; 28
“No matter how powerful a petitioner’s showing,
only [the Seventh Circuit] may authorize the commencement of a
second or successive petition.”
990, 991 (7th Cir. 1996).
Nunez v. United States, 96 F.3d
As the Nunez Court explained:
From the district court's perspective, it is
an allocation of subject-matter jurisdiction
to the court of appeals.
A district court
must dismiss a second or successive petition,
without awaiting any response from the
government, unless the court of appeals has
given approval for its filing. . . . A second
or successive collateral attack may no more
begin in the district court than a criminal
prosecution may commence in the court of
appeals.
Nunez, 96 F.3d at 991.
Because Travis has already filed a section 2255 motion with
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this Court, her current section 2255 motion is considered a second
or successive collateral attack on her conviction or sentence. She
has not obtained (or even sought as far as this Court is aware)
permission from the Seventh Circuit Court of Appeals to file this
successive
section
2255
motion,
and,
therefore,
it
must
be
dismissed.
The fact that Travis’ appeal is still pending does not
change this analysis. See Phillips v. United States, 668 F.3d 433,
435 (“Nothing in the language of § 2244 or § 2255 suggests that the
time-and-number limits are irrelevant as long as a prisoner keeps
his
initial
request
petitions.”).
alive
through
motions,
appeals,
and
Therefore, Travis’ motion is DISMISSED for lack of
jurisdiction.
Certificate of Appealability
Pursuant to Rule 11 of the Rules Governing Section 2255
Proceedings, a district court must “issue or deny a certificate of
appealability
applicant.”
when
it
enters
a
final
order
adverse
to
the
A certificate of appealability may issue only if the
applicant “has made a substantial showing of the denial of a
constitutional right.”
28 U.S.C. § 2253(c)(2).
To make such a
showing, a defendant must show that “reasonable jurists could
debate whether (or, for that matter, agree that) the motion should
have been resolved in a different manner or that the issues
presented
were
adequate
to
deserve
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encouragement
to
proceed
further.”
Slack v. McDaniel, 529 U.S. 473, 484 (U.S. 2000)
(internal quotation marks and citation omitted).
For the reasons set forth above, the Court concludes that
Travis’ motion is successive and has not been certified by the
Seventh Circuit Court of Appeals.
The Court finds no basis for a
determination that reasonable jurists would find this decision
debatable or incorrect or that the issues deserve encouragement to
proceed further.
Therefore, a certificate of appealability will
not be issued.
DATED: August 30, 2013
/s/RUDY LOZANO, Judge
United States District Court
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