Flenoid v. United States
| Decision Date | 14 April 2020 |
| Docket Number | No. 4:20 CV 488 CDP,4:20 CV 488 CDP |
| Parties | LARRY FLENOID, Movant, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Eastern District of Missouri |
This matter comes before the Court on a document1 filed by movant Larry Flenoid that has been construed as a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. The motion is successive, and movant has not sought authorization from the United States Court of Appeals for the Eighth Circuit for this Court to consider the application. See 28 U.S.C. § 2244(b)(3)(A). Therefore, for the reasons discussed below, the Court will dismiss the motion without further proceedings.
On January 22, 2004, following a jury trial, movant was convicted of one count of escape and one count of being a felon in possession of a firearm. United States v. Flenoid, No. 4:03-cr-501-CDP-1 (E.D. Mo.). On April 9, 2004, movant was sentenced to sixty months on the escape count, and to life on the felon in possession of a firearm count, the sentences to run concurrently. Movant filed a notice of appeal. The United States Court of Appeals for the Eighth Circuit affirmed the judgment of this Court on July 29, 2005. United States v. Flenoid, No. 04-1899 (8th Cir. 2005).Movant's petition for writ of certiorari to the United States Supreme Court was denied on January 23, 2006. Flenoid v. United States, 126 S.Ct. 1179 (2006).
Movant filed his first 28 U.S.C. § 2255 motion to vacate, set aside, or correct sentence on January 3, 2007. Flenoid v. United States, No. 4:07-cv-8-RWS (E.D. Mo.). In the motion, movant alleged ineffective assistance of counsel, as well as various violations of the Fifth, Sixth, Eighth, and Fourteenth Amendments. The Court denied movant's motion on June 18, 2009. After the Court denied movant's subsequent motion for reconsideration, movant filed an appeal.
On February 26, 2010, the United States Court of Appeals for the Eighth Circuit denied movant's application for a certificate of appealability and dismissed the appeal. Flenoid v. United States, No. 09-3583 (8th Cir. 2010). Movant filed a motion for reconsideration in the Eighth Circuit, which was also denied. Movant filed a petition for writ of certiorari in the United States Supreme Court, which was denied on October 4, 2010. Flenoid v. United States, 131 S.Ct. 240 (2010). Thereafter, movant filed a motion to reopen the case in this Court. The motion was denied on December 6, 2010. Flenoid v. United States, No. 4:07-cv-8-RWS (E.D. Mo.). Movant again filed a notice of appeal. The United States Court of Appeals for the Eighth Circuit summarily affirmed the Court's judgment on February 17, 2011. Flenoid v. United States, No. 11-1035 (8th Cir. 2011). The United States Supreme Court denied movant's petition for writ of certiorari on October 3, 2011. Flenoid v. United States, 132 S.Ct. 286 (2011).
Movant filed his second § 2255 motion on September 21, 2015. Flenoid v. United States, No. 4:15-cv-1444-RWS (E.D. Mo.). On September 22, 2015, the Court denied the motion without prejudice because it was successive, and because movant did not first obtain permission from the United States Court of Appeals for the Eighth Circuit before filing in the district court. Rather than dismiss the action, however, the Court transferred the motion to the Eighth Circuit pursuant to 28U.S.C. § 1631. On November 10, 2015, the United States Court of Appeals for the Eighth Circuit granted movant's motion to dismiss, and dismissed the appeal. Flenoid v. United States, No. 15-3339 (8th Cir. 2015).
On November 9, 2015, movant filed his third § 2255 motion to vacate, set aside, or correct sentence. Flenoid v. United States, No. 4:15-cv-1689-RWS (E.D. Mo.). The Court denied the motion as successive, and dismissed the action on November 13, 2015. Movant filed two separate motions seeking to alter or amend the Court's judgment. Both were denied.
On December 14, 2015, movant filed a notice of appeal. The United States Court of Appeals for the Eighth Circuit denied movant's petition for authorization to file a successive habeas application in the district court on October 28, 2016. Flenoid v. United States, No. 16-2590 (8th Cir. 2016).
Movant filed a motion to reopen his original § 2255 case on December 6, 2017. Flenoid v. United States, No. 4:07-cv-8-RWS (E.D. Mo.). The motion was denied, as was movant's subsequent motion for reconsideration. Movant filed a notice of appeal on February 16, 2018. The United States Court of Appeals for the Eighth Circuit summarily affirmed the judgment of this Court on May 22, 2018. Flenoid v. United States, No. 18-1373 (8th Cir. 2018). The United States Supreme Court denied his petition for writ of certiorari on December 10, 2018. Flenoid v. United States, 139 S.Ct. 652 (2018).
Following the denial of certiorari, movant filed a motion for leave to resubmit traverse, which was denied on February 27, 2019. He then filed a motion requesting relief from the judgment. The Court denied this motion on March 6, 2019.
Movant filed the instant motion on April 6, 2020.
The motion movant filed with the Court is titled "Motion Pursuant to United States Constitution Article III §2 cl.1; 28 U.S.C. § 1331 or in the Alternative 28 U.S.C. § 1651(a) 'The All Writs Act.'" As noted in the title, movant provides three separate bases for this Court's jurisdiction to entertain his motion: the United States Constitution;2 28 U.S.C. § 1331;3 and 28 U.S.C. § 1651.4 (Docket No. 1 at 2). In the motion, movant asks the Court to "provide him with a full and fair substantive analysis of the federal questions presented," as well as expedited "resolution of the relief being sought." (Docket No. 1 at 1).
Movant raises two issues in his motion. (Docket No. 1 at 3). Both issues relate to movant's 1982 federal conviction for five counts of distribution of cocaine, in violation of 21 U.S.C. § 841(a). (Docket No. 1 at 5). In that case, movant states that he pled guilty on September 30, 1982, and was sentenced to concurrent fifteen-year sentences, with an additional five-year term of "Special Parole." Movant explains that when he was sentenced in United States v. Flenoid, No. 4:03-cr-501-CDP-1 (E.D. Mo. Apr. 9, 2004), the criminal case underlying the instant motion, the probation officer conducting the presentence investigation determined that he had seven prior convictions, qualifying him for sentencing pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). According to movant, his 1982 federal convictions counted as four "separate and distinct serious drug offenses for ACCA enhancement purposes." (Docket No. 1 at 5-6).
Movant asserts that following the Anti-Drug Abuse Act of 1986, the United States Sentencing Commission adopted a "weight down scheme that uses the weight of drugs involved in the offense as the sole proxy to identify major and serious dealers." (Docket No. 1 at 7). Pursuant to this scheme, movant contends that his four 1982 convictions should be nullified from eligibility for 18 U.S.C. § 924(e) enhancement. (Docket No. 1 at 6). Furthermore, movant argues that his attorney was ineffective at the critical stage of the sentencing hearing by "failing to investigate and become aware of the specific definition/criterion pertaining to what constituted a serious drug offense for a prior conviction to qualify for 18 U.S.C. § 924(e)(2)(A)(i) enhancement." (Docket No. 1 at 8-9).
Although movant acknowledges that his attorney did object to the recommended ACCA enhancement, he alleges that this objection was "perfunctory" and "quickly and easily refuted by the government." (Docket No. 1 at 9). Movant claims that his attorney's "failure to research, investigate or otherwise acquaint himself with the particulars of [t]he Drug Sentencing Table" prejudiced him, because he would otherwise have received a lesser sentence. (Docket No. 1 at 10).
Movant seeks expedited "redress of the questions presented and resurrection of his Constitutional protection against suffering the hardships of a plain Miscarriage of Justice." (Docket No. 1 at 13).
Movant is a pro se litigant currently incarcerated at the Federal Correctional Institution in Terra Haute, Indiana. He has filed a motion with the Court that has been construed as a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. For the reasons discussed below, the motion must be denied and dismissed as successive.
A district court is not "required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus." 28 U.S.C. § 2244(a). Rather, under the Antiterrorism and Effective Death Penalty Act of 1996, a federal inmate seeking relief under 28 U.S.C. § 2255 must first receive certification from the court of appeals to file a second or successive motion. United States v. Brown, 915 F.3d 1200, 1201 (8th Cir. 2019). See also 28 U.S.C. § 2244(b)(3)(A) ().
An inmate cannot evade this rule "by simply filing a successive § 2255 motion in the district court." Baranski v. United States, 880 F.3d 951, 955 (8th Cir. 2018). See also Boyd v. United States, 304 F.3d 813, 814 (8th Cir. 2002) (). Instead, it is up to the court of appeals to determine whether movant has made a prima facie case that he has satisfied the requirements of §...
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