In re Parker
575 F. App'x 415
5th Cir.2014Background
- Andrew M. Parker pleaded guilty to multiple federal offenses (conspiracy, wire fraud, money laundering, tax offenses) and received concurrent prison terms and three years supervised release; $10M restitution and forfeiture were imposed.
- On direct appeal, this Court affirmed Parker's convictions.
- Parker filed a § 2255 motion; the magistrate and district court denied relief but corrected two counts (27 and 28) by reducing supervised-release terms from three years to one year in a third amended judgment. The correction did not change overall supervised-release length.
- Parker filed a subsequent § 2255 motion in district court challenging his convictions; the court ruled it successive and unauthorized and dismissed it.
- Parker sought authorization from the Fifth Circuit to file a second or successive § 2255 petition, arguing the third amended judgment was an intervening judgment under Magwood and thus his new petition is not "second or successive."
- The Fifth Circuit concluded the amended judgment was a ministerial correction of supervised release, not a new resentencing or intervening judgment, and denied authorization and related ancillary requests.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Parker's new § 2255 petition is "second or successive" under 28 U.S.C. § 2255(h) | Parker: The third amended judgment is an intervening judgment under Magwood, so his new petition is not successive and needs no prior authorization | Government: The amendment merely corrected supervised-release terms and did not produce a new sentence or judgment for purposes of § 2255(h) | The court held the petition is second or successive; authorization required and not shown |
| Whether the third amended judgment constitutes a new, intervening judgment under Magwood | Parker: The amended judgment altered the judgment and thus allows a new § 2255 challenge to all convictions/sentence | Government: The amendment was corrective (statutory-max error) with no resentencing or reassessment, and it did not alter overall sentence or produce a new judgment under Magwood/Lampton | The court held the amendment did not create a new, intervening judgment because it was not the product of resentencing and had no substantive effect on the sentence |
| Whether Parker met § 2255(h) gatekeeping standards for successive petitions (new evidence or new retroactive constitutional rule) | Parker: Did not assert § 2255(h) criteria; relied on Magwood to avoid gatekeeping | Government: Parker made no showing of newly discovered evidence or a new retroactive rule | Court: Parker made no § 2255(h) showing; authorization denied |
| Requests to recall mandate, have a hearing, refund attorney fees, and take discovery | Parker: ancillary relief requests related to amended judgment and new petition | Government: Such relief is unwarranted absent authorization to litigate a successive § 2255 | Court: All ancillary requests denied |
Key Cases Cited
- Magwood v. Patterson, 561 U.S. 320 (interpreting when an intervening judgment makes a later habeas petition non-successive)
- In re Lampton, 667 F.3d 585 (5th Cir.) (applying Magwood in § 2255 context; new sentence required for intervening-judgment exception)
- Burton v. Stewart, 549 U.S. 147 (equating criminal "judgment" with "sentence" for successive-petition analysis)
- Wentzell v. Neven, 674 F.3d 1124 (9th Cir.) (Magwood applied where resentencing produced amended judgment)
- Johnson v. United States, 623 F.3d 41 (2d Cir.) (Magwood applies when prior habeas relief yields amended judgment/resentencing)
- Suggs v. United States, 705 F.3d 279 (7th Cir.) (discussing limits of Magwood where resentencing occurs but collateral challenges to convictions remain)