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United States v. Thomas

United States District Court, S.D. Mississippi, Northern Division

January 3, 2018

UNITED STATES OF AMERICA
v.
CASSANDRA FAYE THOMAS

          ORDER

          Daniel P. Jordan III CHIEF UNITED STATES DISTRICT JUDGE

         Defendant Cassandra Faye Thomas asks the Court to alter or amend its Orders [206, 210] denying the Motion to Vacate [195] she filed under 28 U.S.C. § 2255. But her latest collateral attack on the judgment does not suggest that the Court erred in rejecting the claims she first presented under § 2255. Instead, she raises eight new claims. Because these new claims constitute a second or successive application for habeas relief, the Court finds that it lacks jurisdiction to consider them until the Fifth Circuit grants Thomas leave to proceed. Thomas's Motion to Amend Judgment [216] is therefore denied without prejudice.

         I. Background

         Thomas faced a ten-count indictment alleging, under various theories, that she billed Medicare for healthcare services that were not reimbursable. The jury found her guilty as charged, and the Fifth Circuit affirmed the conviction. On January 26, 2015, Thomas, through counsel, filed a Motion to Vacate. After several rounds of briefing, the Court denied the motion in separate orders entered November 8, 2016, and September 26, 2017. The Court then denied a certificate of appealability. See COA [211].

         Thomas immediately appealed these rulings to the Fifth Circuit Court of Appeals, but she did not stop there. In addition, she filed a “Statement of Evidence” [213], an Amended “Statement of Evidence” [214], and a similarly worded affidavit [215]. The Amended Statement of Evidence lists the following eight grounds for relief:

(1) sentencing counsel did not explain that undisputed facts in the Presentence Investigative Report (“PSR”) are considered stipulations;
(2) sentencing counsel failed to dispute “false facts[, ] conclusory statements[, ] and errors of law in the PSR”;
(3) trial counsel failed to challenge “the fact that the court's jury charge was deficient by failing to properly instruct the jury regarding all elements of the alleged offenses”;
(4) trial, appellate, and habeas counsel failed to challenge the conspiracy instruction which gave only one object of the conspiracy whereas the indictment alleged two;
(5) trial, appellate, and habeas counsel failed to inform her that “her sentence exceeds the highest Apprendi statutory maximum pursuant to 18 U.S.C. § 3559(a)(3) [and] 18 U.S.C. § 3581(b)(3)”;
(6) trial, appellate, and habeas counsel told her she was “charged with racketeering activities but [there was] NO mention of RICO in the jury instructions”;
(7) the 168 month sentence “exceeds the five (5) year statutory maximum”; and
(8) trial, appellate, and habeas counsel failed to challenge defects ...

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