555 F. App'x 369

5th Cir.

2014

In re Torvos SIMPSON, Movant.

No. 13-40718.

United States Court of Appeals, Fifth Circuit.

Feb. 7, 2014.

369

shе does contend that the calculation was in error because it did not include the value of the services rendered. In making this argument, Martin does not сhallenge any particular date on which services were or were not provided. Instead, she broadly argues that the loss amount, and the restitution award on which it was based, should be zero because her Blue Cross patients received the billed-for care when Martin visited them, before or after hеr full-time job, or when another LPN did so.

Martin made the same argument, unsuccessfully, in her motions for judgments of acquittal and for a new trial. The district court observed that

Martin‘s nurse notes represented that she cared for E.D. on certain dates when Martin was on duty at Morehouse General Hospital. Blue Cross was chаrged for and paid the claims Martin submitted for E.D.‘s care, relying on the records that showed Martin was providing the care. The evidence did not bear out Martin‘s theories that another Bayou nurse performed these services for E.D. or that she routinely performed these services before and after her shifts at the hospital, and the jury was entitled to reject these theories accordingly.

The district court reached the same conclusion as to Martin‘s other Blue Cross patient, C.S.

We find no error in the district court‘s reasoning. Although a defendant is entitled to a credit for services she performs, see United States v. Jones, 475 F.3d 701, 706 (5th Cir.2007), Martin‘s оbjection to her sentence is simply a repackaging of the arguments she relies on to challenge the sufficiency of the evidence supрorting her conviction. Just as we have found that evidence sufficient to uphold her conviction for health care fraud, we similarly conclude that, in light оf all the evidence already discussed, the district court did not err in rejecting her claims that she or another LPN cared for the Blue Cross patients. Martin‘s is not a case in which the government‘s proposed loss calculation was based on unsubstantiated claims that particular health care services were not rendered. See id. at 705-07. Here, the district court was able to rely on the same evidence heard by the jury, which showed that in signing her name and obtаining an individual provider number, Martin represented that she personally provided the care described in the nurse notes. The district court also heard testimony by Agent Allen at sentencing that, based ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍on the times Martin clocked in and out of work at Morehouse General, Martin could not have provided all the care listed in the nurse notes. Accordingly, we hold that Martin has not shown that the district court‘s loss calculation of $200,853 was clearly erroneous or misaрplied the law. We thus affirm the district court‘s sentence.

III. CONCLUSION

For the aforementioned reasons, we AFFIRM Martin‘s and Turner‘s convictions, and Martin‘s sentence.

Jamеs Warner Huggler, Jr., Esq., Law Office of James Huggler, Tyler, TX, for Movant.

Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.

PER CURIAM:^*

Torvos Simpson, federal prisoner # 47110-078, moves for authorization to file a successive 28 U.S.C. § 2255 motion challenging his life sentence without possibility of parole. In 1995, together with two co-defendants, Simpson pleaded guilty to carjacking in violation of 18 U.S.C. § 2119, and possession of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1). The carjacking resulted in the death of another teenager. Simpson was undеr eighteen at the time of the offense. Simpson was sentenced to life without the possibility of parole, plus a consecutive 60-month sentencе.¹

Section 2255(h) bars a federal prisoner from filing a second or successive motion to vacate, set aside, or correct a sentence unless the court of appeals certifies that the petition either (1) contains “newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense,” or (2) is premised on “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). Simpson seeks leave to file a successive § 2255 motion on the grounds that the United States Supreme Court‘s recent decision in Miller v. Alabama, — U.S. —, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), which held that mandatory life sеntences without the possibility of parole for juvenile offenders violate the Eighth Amendment‘s ban on cruel and unusual punishment, announced a new rule of constitutional law made retroactively applicable on collateral review by the United States Supreme Court. He argues that Miller renders his sentеnce unconstitutional, because he was a juvenile at the time of the charged offenses. The government does not oppose Simpson‘s motion.

Simpson must make a prima facie showing that his motion satisfies the § 2255 requirements for second or successive motions in order to obtain permission to proceed in the district court. See Reyes-Requena v. United States, 243 F.3d 893, 897-99 (5th Cir.2001) (holding that the prima facie standard is incorporated into § 2255). A “prima facie showing” is “simply a sufficient showing of possible merit to warrant a fuller exploration by the district court.” Id. at 899 (quoting Bennett v. United States, 119 F.3d 468, 469 (7th Cir.1997)).

We do not resolve the ultimate ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍issue of the retroactivity of Miller.² However, we find that the Supreme Court‘s actions in Miller and the procedural posture of Miller itself satisfy Simpson‘s burden to make a prima facie showing that his petition rests on a new rule of law made retroactive by the Supreme Court on collateral review. Miller involved two companion cases; Miller v. Alabama, which was on direct appeal of conviction and sentence, 132 S.Ct. at 2462-63, and Jackson v. Hobbs, which involved a petition for habeas corpus in the Arkansas statе court, brought after the conviction had been affirmed on direct appeal, id. at 2461-62. The Supreme Court specifically held that the new rule it announced applied not only to the defendant on direct appeal in Miller, but also to the defendant in Jackson on collateral review. See id. at 2463, 2475; State v. Ragland, 836 N.W.2d 107, 116 (Iowa 2013). The Court considered both cases together, applied its reasoning and holding to both cases, and specifically held that the defendant in Jackson should be given an individualized sentencing hearing. See Miller, 132 S.Ct. at 2468-69; see also Jackson v. Norris, 2013 Ark. 175, at *1-2, 426 S.W.3d 906, 907-08, 2013 WL 1773087 (2013) (remanding for resentencing in accordance with Miller). “There would have been no reason for the Court to direct such an outcome if it did not view the Miller rule as applying retroactively to ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍cases on collateral review.” Ragland, 836 N.W.2d at 116. Further, in Teague v. Lane, 489 U.S. 288, 300, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), the Supreme Court stated that “once a new rule is аpplied to the defendant in the case announcing the rule, evenhanded justice requires that it be applied retroactively to all who arе similarly situated.” This principle further supports the proposition that the Court‘s own application of the Miller rule to a case on collateral review indicates that the Court considered the rule to be retroactive.

Given the Supreme Court‘s action in Miller, we conclude that Simpson has made a prima facie showing that his successive petition is based оn “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court that was previously unavailаble.” § 2255(h)(2). This grant is, however, “tentative in the following sense: the district court must dismiss the motion that we have allowed the applicant to file, without reaching the merits of the motion, if the court finds that the movant has not satisfied the requirements for the filing of such a motion.” The district court then is the second ‘gate’ through which the рetitioner must pass before the merits of his or her motion are heard.” Reyes-Requena, 243 F.3d at 899 (quoting Bennett, 119 F.3d at 470); see also In re Morris, 328 F.3d 739, 741 (5th Cir.2003).

We accordingly GRANT Simpson‘s motion for authorization to file a successive § 2255 motion in the district court.

Notes

Given the рrocedural posture of the motion, we have minimal information regarding Simpson‘s ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍sentencing proceedings. However, we do note that Simpson wаs sentenced prior to , when the United States Sentencing Guidelines were mandatory, see, e.g., .

There is disagreement among federal and state courts about whether Miller has been made retroactive to cases on collateral review. Compare (granting a motion for leave to file a successive § 2255 petition based on Miller), (holding that Miller is retroactive), (same), and (applying Miller retroactively), with (holding that Miller is not retroactive), and (same) (unpublished).

Pursuаnt to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

Read the detailed case summary