United States District Court, S.D. Mississippi, Northern Division
CARLTON W. REEVES, UNITED STATES DISTRICT JUDGE
the Court are Herbert Jerome Townsend's second pro
se Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence by a Person in Federal Custody,
Docket No. 442, and Motion to Supplement, Docket No. 463. For
the reasons below, the Motions are denied.
to a written plea agreement, Townsend appeared before this
Court with his lawyer, Ross Barnett, Jr., on May 2, 2013, to
plead guilty to conspiracy to possess with intent to
distribute more than 50 grams of methamphetamine. On
September 22, 2013, Townsend was sentenced to 384 months in
now acting as pro se, filed his first § 2255 petition on
April 30, 2014. He made the following claims: “(1) his
attorney was ineffective for failing to timely file a notice
of appeal (NOA); (2) the drug quantity is erroneous because
it was not included in the indictment; (3) the conspiracy was
a buyer/seller relationship because there was no agreement or
no joint stake in the drug selling operation; and (4) the
Government breached its plea agreement by not moving for 2
levels pursuant to 3E1.1 and the leadership role is
non-existent because the offense was a fronting relationship,
[sic] the wiretap did not constitute with the necessity
requirement.” United States v. Townsend, No.
3:12-CR-118-CWR-FKB, 2015 WL 2353077, at *1 (S.D.Miss. May
15, 2015). In his Motion to Supplement, he added that the
“Government breached the plea agreement by not
rewarding him with the 3E1.1 for acceptance of responsibility
in violation of amendment 775 and doctrine [sic] U.S. v.
Palacios no. 13-40153.” Id.
Court dismissed all claims with prejudice-except for his
ineffective assistance of counsel claim against his former
attorney for failing to timely file a notice of appeal.
Id. at *3 (quotation marks omitted). On September
14, 2015, the Court held an evidentiary hearing on the issue
and granted Townsend 30 days to file an appeal of his
direct appeal, Townsend argued that (1) the district court
erred in assessing the relevant drug quantity in order to
determine the base offense level; (2) he should not have
received a four-level leadership enhancement; and (3) Barnett
rendered ineffective assistance at his plea proceedings. The
Fifth Circuit dismissed Townsend's appeal, finding that
his “waiver was knowing and voluntary, as Townsend knew
he had the right to appeal and that he was giving up that
right in the plea agreement.” United States v.
Townsend, 667 Fed.Appx. 514, 514 (5th Cir. July 28,
2, 2017, Townsend filed the instant Motion to Vacate and
Motion to Supplement. He alleges as grounds for relief: (1)
“his trial lawyer was ineffective in failing to advise
him of the possible relevant conduct and in representing him
relative to the sentencing hearing” and the plea
hearing; (2) “the court should not have included as
relevant conduct several transactions”; (3) “he
should not be subject to a leader/organizer
enhancement”; (4) his waiver of appeal was not
“voluntary and knowingly made;” and (5)
“[t]he Court lacked authority punish [him] on the
amount of methamphetamine and its level of purity.”
Docket Nos. 443, 464.
United States asserts that the petition is successive under
§ 2255 and Townsend has not obtained permission to file
his motion from the Fifth Circuit, as required by the
Antiterrorism and Effective Death Penalty Act of 1996
in 1996, AEDPA made it significantly harder for prisoners
filing second or successive federal habeas corpus motions to
obtain hearings on the merits of their claims. Graham v.
Johnson, 168 F.3d 762, 772 (5th Cir. 1999). A
“subsequent motion is second or successive when it 1)
raises a claim challenging the petitioner's
conviction or sentence that was or could have been raised in
an earlier petition; or 2) otherwise constitutes an
abuse of writ.” United States v.
Orozco-Ramirez, 211 F.3d 862, 867 (5th Cir. 2000)
no new ground for relief, Townsend brings claims that are
similar or identical to those raised on his direct appeal.
His “instant action is simply an attempt to relitigate
his sentence.” Foster v. United States, No.
3:01-CR-161-HTW-LRA, 2012 WL 2563010, at *3 (S.D.Miss. June
11, 2012). Because these issues were raised and rejected by
the Fifth Circuit, they cannot be raised again in a §
2255 proceeding. See United States v. Rocha, 1098
F.3d 225, 230 (5th Cir. 1997) (explaining that arguments
addressed and rejected on direct appeal “are
procedurally barred from collateral review.”).
§ 2255(h) requires that applicants obtain permission
from the appropriate court of appeal to file a second or
successive petition. Because Townsend has not obtained the
requisite certification from the Fifth Circuit, his motions