SHEPPARD v. UNITED STATES OF AMERICA
Filing
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MEMORANDUM OPINION & ORDER dismissing Motion to Vacate (2255) as to JASON SHEPPARD (1). The Clerk of Court shall mark Civil Action 15-450 CLOSED. Signed by Judge Maurice B. Cohill on 5/7/15. (bfm )
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JASON SHEPPARD,
Petitioner,
vs.
UNITED STATES OF AMERICA.
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Civ. No. 15-450
Crim. No. 10-119
MEMORANDUM OPINION AND ORDER
Pending before the Court is Petitioner Jason Sheppard's most recent§ 2255 Motion
("Petitioner's Fourth §2255 Motion), filed on April2, 2015. In this Motion, Petitioner argues
that his rights under the Sixth Amendment were violated when his former defense counsel, Gary
Gerson ("Gerson") had an actual conflict of interest that he did not reveal to Petitioner, namely
that: (1) in March 2010, while representing Petitioner in two civil cases and on a D.U.I. charge,
Gerson was also representing Morgan McCullum ("McCollum") on a D.U.I. charge; (2) Gerson
knew, as ofMarch 2010, that McCollum was providing information to the Government about
Petitioner's conduct that led to Petitioner being indicted in this case in June 2010 and Gerson
counseled McCollum to speak to the FBI about Petitioner; (3) Gerson never warned Petitioner of
McCollum's involvement with the FBI or that Petitioner should not communicate with
McCollum; and (4) McCollum's D.U.I. charge was deleted of record as a result ofher
cooperation with the FBI. Petitioner's Fourth §2255 Motion, pp. 5-7. Petitioner also alleges that
his rights under the Fifth and Sixth Amendments were violated because the indictment filed
against him was illegal as a result of the Assistant United States Attorney on the case knowing
about Gerson's conflict of interest and indicting Petitioner. Id. at pp. 4-5; 8-9. Petitioner also
contends that he is actually innocent of the charges against him and that there was a change in
controlling law as of October 14, 2014 with respect to the waiver of appellate rights in plea
agreements such that his waiver of his rights to file a collateral appeal in his plea agreement
should not now be used against him. ld. at pp. 10-11. None ofthese arguments were contained
in his original Motion to Vacate, Set Aside, or Correct a Sentence Pursuant to 28 U.S.C. § 2255
("Petitioner's First §2255 Motion) which was filed in this Court on November 21, 2013 and
denied on its merits in March 2014 and about which the appellate court denied a certificate of
appealability on February 5, 2015.
I. Procedural History.
As stated, on November 21, 2013, Petitioner filed his first of four §2255 Motions. This
Court denied Petitioner's First §2255 Motion on March 5, 2014. The Court received a letter and
a motion to supplement Petitioner's First §2255 Motion on March 6, 2014; having already ruled
on the motion, we treated the documents as a Motion for Reconsideration of the denial and
denied this motion on its merits on March 11, 2014.
Petitioner filed an appeal of the March 5, 2014 denial Order on April3, 2014. While the
appeal was pending, Petitioner mailed numerous documents to the Court. One such document
was a Notice to Court Regarding New Evidence that stated that on May 16, 2014, his trial
counsel in a separate criminal case had given him documents that "show that the F.B.I's star
witness in the [instant] matter, was also represented by Gerson on a D.U.I and that Gerson
counseled her to go and tell the truth to the F.B.I. about Sheppard" and that "Gerson never
advised Sheppard thatthis particular woman- Morgan McCullum- was helping the F.B.I
against Sheppard or that he (Gerson) had counseled her to talk with the FB.I;" we filed this
Notice on the docket on June 3, 2014. See June 3, 2014 Notice, pp. 1-2. A second document
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was a letter from Petitioner that we filed on June 26, 2014 as a Second Motion for
Reconsideration of our denial of Petitioner's First§ 2255 Motion. On August 4, 2014, we
denied this motion based on lack of jurisdiction over the matter that was then on appeal.
On September 24, 2014, while his appeal ofhis First §2255 Motion was still pending,
Petitioner filed his second§ 2255 Motion ("Petitioner's Second §2255 Motion), arguing "all
grounds listed in CV -13-1667 [his First§ 2255 Motion] plus new evidence of a real conflict of
interest where my counsel represented the Government's leading witness on a DUI charge and
counseled her to testify against me in exchange for dropping said DUI." Second §2255 Motion,
p. 4. This Court denied Petitioner's Second §2255 Motion on September 30, 2014 on the basis
that the Motion was a second or successive §2255 petition such that we did not have jurisdiction
over the motion without prior Third Circuit court approval. We also denied the issuance of a
certificate of appealability and advised Petitioner that he had the right to appeal our Order
denying his Motion and that he needed to seek a certificate of appealability from the appellate
court. Petitioner did not, however, appeal the denial or seek a certificate of appealability from the
appellate court.
On November 13, 2014, while his appeal ofhis First §2255 Motion was still pending,
Petitioner filed his third § 2255 Motion ("Petitioner's Third §2255 Motion), arguing "that
although his original § 2255 Motion still is on appeal with the United States Court of Appeals for
the Third Circuit, "[United States Deputy Attorney General James] Cole's [October 14,2014]
memorandum ... shows, Sheppard plainly and unambiguously has received permission to appeal
from the U.S. Department of Justice and no permission shall now be required from the 3rd
Circuit. This change in controlling law makes this motion classified as a new filing and not a
successive one and therefore, Sheppard's battle was overcome on 10114/14." Petitioner's Third§
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2255 Motion, p. 4. On November 14, 2014, we denied Petitioner's Third §2255 Motion on the
basis that the Motion was a successive §2255 petition such that we did not have jurisdiction over
the motion without prior Third Circuit court approval. We also denied the issuance of a
certificate of appealability and advised Petitioner that he had the right to appeal our Order
denying his Motion and that he needed to seek a certificate of appealability from the appellate
court. Petitioner did not, however, appeal the denial or seek a certificate of appealability from the
appellate court.
On February 5, 2015, the United States Court of Appeals for the Third Circuit entered a
case dispositive Order whereby it denied Petitioner's request for a certificate of appealability
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with respect to Petitioner's First §2255 Motion and seven (7) other motions filed by Petitioner.
In so holding, the appellate court stated:
Appellant's motion to supplement the record (docketed June 5, 2014) requests
that we remand for the District Court to consider a new claim, not presented in his
initial motion under 28 U.S.C. § 2255, that his counsel Gary Gerson, Esquire,
operated under a conflict of interest when advising appellant to plead guilty. After
filing his motion with this Court, however, appellant twice attempted to raise this
claim in the District Court, including by asserting it in a second § 2255 motion.
The District Court denied that motion as second or successive on September 30,
2014. That order was appealable under 28 U.S.C. § 1291, and it expressly advised
appellant of his right to appeal, but appellant did not appeal and his time to do so
has expired. See Fed. R. App. P. 4(a)(l)(B). Appellant's failure to appeal means
that we lack appellate jurisdiction over the District Court's September 30 order
and thus lack appellate jurisdiction to review the District Court's conclusion that
.appellant's new claim is barred by the restrictions on filing successive § 2255
motions.
Under these circumstances, we decline to exercise any authority we may have to
remand and thereby relieve appellant of the consequences of an order for which
he could have sought appellate review in the ordinary course but did not. We do
not decide whether appellant's new claim is second or successive because
appellant has not appealed from the District Court's order concluding that it is. To
the extent that appellant's new claim is successive, however, and to the extent that
appellant's motion can be construed as an application under 28 U.S.C. §§ 2244
and 2255 for authorization to file a second or successive § 2255 motion, the
application is denied because appellant's new claim is not based on new law or on
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new facts tending to establish his innocence. See 28 U.S.C. §§ 2244(b)(2),
2255(h). We are further satisfied that appellant has not otherwise shown that his
new claim has sufficient merit to warrant a remand in the interests of justice. We
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conclude that appellant's remaining motions lack meritas well.
February 5, 2015 Order, pp. 2-3.
II. Legal Analysis.
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDP A"), a
"second or successive" post-sentencing application for a writ of habeas corpus must be certified
by the appropriate court of appeals to contain either newly discovered evidence that would be
sufficient to preclude a reasonable factfinder from making a finding of guilt or a new rule of
constitutional law made retroactive to cases on collateral review by the Supreme Court. 28
U.S.C. § 2255(h). Therefore, if Petitioner's Fourth §2255 Motion is a "second or successive"
petition, then this Court may not review it without prior certification from the Third Circuit.
We find that Petitioner's Fourth§ 2255 Motion is a "second or successive" petition
because it was filed after our decision denying Petitioner's First§ 2255 Motion on its merits had
become final. Therefore, we lack jurisdiction over Petitioner's Fourth §2255 Motion and may
not review it without prior certification from the Third Circuit. Accordingly, this Court will
dismiss Petitioner's Fourth §2255 Motion for lack ofjurisdiction. Moreover, because jurists of
reason would not debate this procedural ruling, a certificate of appealability will not issue.
ORDER
AND NOW, this 7th day of May, 2015, it is hereby ORDERED, ADJUDGED, and
DECREED that Petitioner Jason Sheppard's Fourth§ 2255 Motion is dismissed for lack of
jurisdiction.
It is further hereby ORDERED, ADJUDGED, and DECREED that a certificate of
appealability will not issue because jurists of reason would not debate this procedural ruling.
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It is further hereby ORDERED, ADJUDGED, and DECREED that the Clerk of Court
shall mark Civil Action 15-450 CLOSED.
Maurice B. Cohill, Jr.
Senior U.S. District Court Judge
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