Lohmann v. USA
Filing
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Memorandum Opinion and Order denying the motion of Joshua Lohmann to vacate, set aside or correct sentence under 28 U.S.C. Section 2255 be, and is hereby, dismissed. The Court further orders that a certificate of appealability be, and is hereby, denied. (Ordered by Judge John McBryde on 9/16/2016) (trt)
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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEi S
FORT WORTH DIVISION
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JOSHUA LOHMANN,
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Movant,
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UNITED STATES OF AMERICA,
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NO. 4:16-CV-834-A
(NO. 4:08-CR-147-A)
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Respondent.
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MEMORANDUM OPINION AND ORDER
Came on to be considered the motion of Joshua
Lohmann("Lohmann") titled "Motion for Plain Error Review Pursuant
to SCOTUS Molina-Martinez vs. United States Review Requested
Pursuant F.R.C.P. 60(d) ."Having considered the motion, the court
concludes that movant's motion must be charaterized as a motion
pursuant to 28 U.S.C.
§
2255 to vacate, set aside, or correct
sentence. This is a second or successive motion under 28 U.S.C.
2255 . See Civil Action No. 4:11-CV-153-A. Movant not having
obtained leave to file the motion, the court lacks jurisdiction
to consider it. 28 U.S.C.
§
2255(h).
I.
Background
On November 14, 2008, movant pleaded guilty to one count of
conspiracy to distribute a controlled substance in violation of
21 U. S . C.
§§
8 4 6 and 8 41 (a) ( 1)
&
(b) ( 1) (B) .
On February 2 7,
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I
l 6 2016 '
§
vs.
I
§
2009,
the court sentenced movant to a term of imprisonment of
210 months, to be followed by a four-year term of supervised
release .
The United States Court of Appeals for the Fifth
Circuit affirmed movant's conviction and sentence.
v. Lohmann, 364 F. App'x 167 (5th Cir. 2010).
United States
Movant did not
seek certiorari review .
On March 8 , 2011, Lohmann filed a motion pursuant to 28
U.S . C .
§
2255, which the court denied . See Civil Action No . 4:11-
CV-153-A. Thus , the court must now consider whether the instant
motion is second or successive as contemplated by 28 U.S.C.
§§
2255(h) and 2244(b) or whether, as movant argues, the instant
motion is properly brought as a motion pursuant Rule 60 of the
Federal Rules of Civil Procedure. For the reasons stated below,
the court finds that movant's claims for relief constitute claims
for relief under
§
2255.
II.
Movant's Motion
Movant urges two grounds for relief. First, movant argues
that his original petition should be reopened to address "what is
factually a defect in the integrity of [movant's first]
federal
habeas proceeding" under Rule 60 of the Federal Rules of Civil
Procedure. Second, movant seeks " PLAIN ERROR REVIEW" of his
sentence under Molina-Martinez v. United States, 136 S. Ct. 1338
2
(2016). As explained below, neither claim is cognizable in the
district court .
III.
Analysis
A. Relevant Legal Principles
Under the Antiterrorism and Effective Death Penalty Act
("AEDPAu), any successive habeas claim "that has not already been
adjudicated must be dismissed unless it relies on either a new
and retroactive rule of constitutional law or new facts showing a
high probability of actual innocence.u Gonzalez v. Crosby, 545
U.S. 524, 530 (2005). Furthermore, a district court lacks
jurisdiction to consider a claim that fits into such exceptions
unless the movant has first received a certificate of
appealability. 28 U.S.C.
§
2255(h).
As relevant to the instant motion,
u
[t]he relief that is
available under Rule 60(b) in habeas proceedings must be granted
consistently with [AEDPA]
848
.u
Balentine v. Thaler, 626 F.3d 842,
(5th Cir. 2010). Thus, properly used,
"a Rule 60(b) motion
attacks, not the substance of the federal court's resolution of a
claim on the merits, but some defect in the integrity of the
federal habeas proceedings." Crosby, 545 U.S. at 532-33. On the
other hand,
"[a] motion is substantive-and thus a successive
habeas petition-if it 'seeks to add a new ground for relief,' or
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if it 'attacks the federal court's previous resolution of a claim
on the merits.'n In re Coleman, 768 F.3d 367, 371 (5th Cir.),
cert. denied sub nom. Coleman v. Stephens, 135 S. Ct. 41 (2014)
Moreover,
"[p]rocedural defects are narrowly construed
[and] generally do not include 'an attack based on the movant's
own conduct, or his habeas counsel's omissions,' which 'do not go
to the integrity of the proceedings, but in effect ask for a
second chance to have the merits determined favorably.'n Id.
(quoting Gonzalez, 545 U.S. at 532).
B. Application to Movant's Claims
1. Movant's Claim for Relief under Rule 60(d)
Movant's first ground-that relief from judgment should be
given under Rule 60-must be characterized as a successive motion
for relief pursuant
§
2255. Despite movant's conclusory assertion
that his intial habeas proceeding was tainted by fraud on the
court, a review of movant's supporting arguments makes abundantly
clear movant's desire to have the court reconsider its denial of
his initial petition on the merits. Movant makes no new
allegations of fraud or deception, instead reiterating his
argument that he was improperly adjudged to lack credibility at
his sentencing hearing as a result of fraud being perpetrated on
the court at the sentencing hearing. As noted above, such use of
Rule 60 has been emphatically rejected in this circuit. See,
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In re Coleman, 768 F.3d at 371-72. Moreover, movant's use
of additional affadavits clearly triggers the established rule
that "60(b) motions raising additional facts for consideration
constitute claims, and therefore should be evaluated as
second-or-successive habeas petitions." In re Jasper, 559 F.
App'x 366, 371 (5th Cir. 2014), cert. denied sub nom. Jasper v.
Stephens, 134 S. Ct. 1536 (2014). Finally, even if this Court
would construe Rule 60 as broadly as movant urges, no relief
would be available for movant for the same reasons that no relief
was available at the time that he brought his first motion
pursuant
§
2255: the time to challenge the sentence was direct
appeal and counsel was not ineffective for choosing not to do so
after having vigorously advocating at movant's sentencing for the
very position now advocated by movant in the present motion. See
Doc. 18, Civil Action No. 4:11-CV-153-A (denying movant's
original petition on nearly identical grounds) .
2. Movant's Claim under Molina-Martinez
Movant's second claim presents an even clearer case for
dismissal insofar as movant seeks to invoke a new rule of federal
sentencing law and seeks to do so via a successive petition in
the district court without first receiving leave from the United
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States Court of Appeals for the Fifth Circuit to do so. 1 This
court clearly lacks jurisdiction to consider such a claim.
In April 2016, the Supreme Court decided Molina-Martinez v.
United States,
"reconciling the difference in approaches" that
had formed across the circuits in applying the harmless error
doctrine to plainly erroneous guidelines calculations. 136 S . Ct.
1338, 1342
(2016) . 2 Movant now appears to be urging a view of
Molina-Martinez as having created the plain error doctrine, or at
least having imported the doctrine into the sentencing phase.
Both contentions are refuted by a substantial body of caselaw in
which the doctrine is applied to a range of trial errors,
including those arising at sentencing. See, e.g., United States
v. Olano, 507 U.S. 725, 731 ( 1993)
(expounding on "the standard
for 'plain error' review by the courts of appeals under Rule
52 (b)"); United States v. Mudekunye, 646 F.3d 281, 291 (5th Cir.
2011)
(finding that the defendant had "demonstrated that the
1
To the extent that movant seeks characterization of this ground as falling within Rule 60, the
court notes that such a course has clearly been foreclosed by both the Supreme Court of the Court of
Appea ls for the Fifth C ircuit. See Gonzalez v. Crosby, 545 U.S . 524, 532 (2005) ("In most cases,
determining whether a Rule 60(b) motion advances one or more "claims" will be relatively simple. A
motion that seeks to add a new ground for relief .. will of course qualify."); Leal Garcia v. Quarterman,
573 F .3d 2 14, 221 (5th C ir. 2009).
2
Specifically, the court held that a reviewing court may not app ly an "additional evidence" test, a
test that placed an evidentiary burden on the appellant to show additional prejudice beyond the
appl icat ion of the incorrect guidelines range on direct appea l, clarifying that the error in calculation,
standi ng alone, may be sufficient evidence of prejudice. Molina-Martinez v. United States,
136 S. Ct. 1338, 1347-49 (2016).
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court's
[plain sentencing]
error affected his substantial
rights")
Even assuming that the case did establish for the first time
the ability of an appellant to challenge a plain error in the
application of the sentencing guidelines,
the ruling would almost
certainly fail to meet the requirement of 28 U.S.C.
§§ 2244,
2255
that such a ruling broke new Constitutional ground. Moreover,
even if it were found to be within§ 2255(h),
the holding would
still be unhelpful to the movant, who does not allege that he was
sentenced based on a plain-error miscalculation of the
guidelines. Accordingly, Moline - Martinez provides movant no
jurisdictional footing from which to launch a successive
collateral attack on his sentence, particularly without first
receiving a Certificate of Appealability from the Court of
Appeals for the Fifth Circuit.
Therefore,
The court ORDERS that the motion of Joshua Lohmann to
vacate,
set aside, or correct sentence under 28 U.S.C . § 2255 be,
and is hereby, dismissed.
Pursuant to Rule 22 (b)
of the Federal Rules of Appellate
Procedure, Rule ll(a) of the Rules Governing Section 2255
Proceedings for the United States District Courts, and 28 U.S.C.
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§
2253 (c) (2),
for the reasons discussed herein, the court further
ORDERS that a certificate of appealability be, and is hereby,
denied, as Lohmann has not made a substantial showing of the
denial of a constitutional right.
SIGNED September 16, 2016.
District
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