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United States v. Wright-Beard

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

August 9, 2019

UNITED STATES OF AMERICA
v.
HEATHER ELIZABETH WRIGHT-BEARD

          ORDER

          DANIEL P. JORDAN III CHIEF UNITED STATES DISTRICT JUDGE

         Following denial of her habeas petition under 28 U.S.C. § 2255 and denial of a certificate of appealability, Defendant Heather Elizabeth Wright-Beard filed a “Pro-se Motion Request for Reconsideration/Transverse [sic] Motion to Oppose Government's Response” [97] and a “Pro-se Request for Traverse Motion in Answering Government's Response” [99]. For the reasons that follow, Wright-Beard's request for reconsideration is denied.

         I. Facts and Procedural History

         After her initial jury trial ended in a mistrial, on June 26, 2018, Wright-Beard pleaded guilty to being a felon in possession of a firearm. On September 25, 2018, the Court sentenced her to a 70-month term of incarceration, and on January 28, 2019, Wright-Beard filed her § 2255 motion to vacate. Pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings, the Court “promptly examine[d]” Wright-Beard's motion and concluded that she was entitled to no relief on Grounds One, Three, and Four. See Order [90]. As to Ground Two, it ordered Wright-Beard's former attorneys to file responsive affidavits and the Government to thereafter file a response. Id. at 9. The attorneys filed their affidavits [91, 92], and on March 13, 2019, the Government filed its response [93]. After waiting for the reply deadline to pass, the Court entered an order denying Ground Two [94], a final judgment [95], and a denial of a certificate of appealability [96].

         Forty-eight days later, on May 15, 2019, Wright-Beard filed her motion to reconsider. In it, she complains that she was not afforded an opportunity to file a reply in support of her § 2255 motion, argues that the Supreme Court's February 27, 2019 decision in Garza v. Idaho, 139 S.Ct. 738 (2019), entitles her to relief, and rehashes her arguments regarding the legality of the search of her residence that uncovered the firearm she pled guilty to possessing. The Government did not initially respond to Wright-Beard's motion, so on June 5, 2019, the Court entered a text order directing a response and specifically soliciting the Government's position on “whether any of [Wright-Beard's] arguments should be construed as a second or successive petition under Gonzalez v. Crosby, 545 U.S. 524 (2005).” June 5, 2019 Text-Only Order. The Government responded, and Wright-Beard filed a two-page reply, which the clerk's office docketed as an additional motion. The Court considers the matters raised in Wright-Beard's motion for reconsideration fully briefed and rules as follows.

         II. Analysis

         In her motion, Wright-Beard complains that the Court ruled on her § 2255 motion too quickly, “in violation of [her] being allowed to make a response to the Government['s] answer to her complaint (Transverse Motion).” Mot. [97] at 5. But the Court intentionally waited 13 days before ruling on Wright-Beard's § 2255 motion, which is longer than the period permitted for a reply under the local civil and criminal rules. See L.U. Civ. R. 7(b)(4); L.U. Crim. R. 47(D); see also Rules Governing Section 2255 Proceedings for the United States District Courts, R. 5(d) (“The moving party may submit a reply to the respondent's answer or other pleading within a time fixed by the judge.”); id. at advisory committee notes to 2004 amendments (explaining that Rule 5(d) “prescribes that the court set the time for” movants' replies “and in lieu of setting specific time limits in each case, the court may decide to include such time limits in its local rules”). Wright-Beard did not ask for additional time within which to file a reply, and, in fact, she did not file anything until 48 days after the Court denied her § 2255 motion. The Court did not rule too early.

         She also complains about the Court's text order instructing the Government to address Gonzalez:

[T]he Judge tells the government how they should answer and what they should include in their answer. Defendant[] was not given a helping hand from the judge how to answer in Pro-se's papers. Even though[] Wright-Beard is not a trained attorney with the kind of resources the government has. This “wink and nod” from the judge is improper. . . . [T]he judge respectfully should not be able to stack the deck against the defendant Pro-se in “favor” of the government being able to win the argument.

Def.'s Reply [99] at 1. The issue under Gonzalez-whether Wright-Beard's motion should be considered a second or successive petition-implicates the Court's jurisdiction. See Burton v. Stewart, 549 U.S. 147, 153 (2007). And “[t]he Court is under a continuing duty to address its jurisdiction, sua sponte, if necessary.” United States v. Foreman, No. 1:08-CR-77-HSO-JMR, 2009 WL 4723730, at *1 (S.D.Miss. Dec. 2, 2009). The Court's solicitation of input from the Government on a threshold jurisdictional question it is required to address was not improper, and Wright-Beard had an opportunity to substantively reply.

         As for the jurisdictional question, if Wright-Beard's motion is properly characterized as a second or successive § 2255 motion, the Court lacks jurisdiction to consider it because the Fifth Circuit has not certified that it contains “newly discovered evidence” establishing Wright-Beard's innocence or “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h). In Gonzalez, the Supreme Court held that where a Rule 60(b) motion “seeks to add a new ground for relief” or “attacks the federal court's previous resolution of a claim on the merits, ” it should be construed as a second or successive habeas petition.[1] 545 U.S. at 532. Moreover, “motions that ‘in effect ask for a second chance to have the merits determined favorably' must be construed as successive habeas petitions regardless whether they are characterized as procedural attacks.” Id. (quoting Balentine v. Tahler, 626 F.3d 842, 847 (5th Cir. 2010)).

         On the other hand, a motion challenging “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” is properly brought under Rule 60(b). Id. “Claims properly brought under Rule 60(b) include assertions of ‘[f]raud upon the habeas court' or challenges to procedural rulings that ‘precluded a merits determination'-for instance, the denial of habeas relief ‘for such reasons as failure to exhaust, procedural default, or statute-of-limitations bar.'” United States v. Vialva, 904 F.3d 356, 360 (5th Cir. 2018) (quoting Gonzalez, 545 U.S. at 532 n.5).

         Neither party addresses the extent to which Wright-Beard attacks the Court's prior rulings on the merits as opposed to a defect in the proceedings. But her arguments seem to “attack[] the . . . court's previous resolution of” her claims. Gonzalez, 545 U.S. at 532. And as to Grounds Two, Three, and Four of her § 2255 motion, the Court did reach and rule on the merits. See Order [90] at 4-6; Order [94] at 2-5. As to those claims, Wright-Beard's motion is properly characterized as a second or successive petition over which the Court lacks jurisdiction.

         But as to Ground One-Wright-Beard's challenge to the validity of the search-the Court found Wright-Beard “waived th[e] argument” when she entered her plea agreement. Order [90] at 2. As to this issue, Wright-Beard's claim fails whether that ruling was on the merits or not.[2] If the ruling was on the merits, then the Court would lack jurisdiction over Wright-Beard's motion in its entirety. But even if it considered ...


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