govinfo:USCOURTS-laed-2_13-cr-00286-14

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF LOUISIANA 
 
UNITED STATES  CRIMINAL ACTION 
   
VERSUS 
 
 NO. 13-286 
ANTHONY ELLIS 
 
 SECTION “R” (1) 
 
 
ORDER AND REASONS 
 
 
 Before the Court is defendant Anthony Ellis’s motion to reopen his 28 
U.S.C. § 2255 proceeding. 1  The Government opposes the motion on the 
grounds that Ellis’s motion is a successive habeas petition, and he has not 
sought authorization from the Fifth Circuit to file  it.2  The Court considers 
the motion below. 
 On September 23, 2016, defendant Anthony Ellis moved to vacate his 
sentence under 28 U.S.C. § 2255. 3  On May 22, 2017, Ellis filed an 
amendment to his motion to vacate. 4  Ellis raised the following claims in  
support of his motion to vacate: (1) that his sentence was unconstitutional in 
light of recent Supreme Court decisions; (2) that his lawyer was ineffective; 
 
1  R. Docs. 546 & 566. 
2  R. Doc. 219. 
3  R. Doc. 426. 
4  R. Doc. 445. 
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and (3) that various aspects of his sentence, including his sentencing 
enhancements and consecutive terms of imprisonment, violated the Eighth 
Amendment.  On February 21, 2018, this Court considered and denied Ellis’s 
section 2255 motion.
5  On January 19, 2021, defendant filed this motion to 
reopen his previous section 2255 proceeding. 6  In his motion to reopen 
proceedings, Ellis represents that this Court committed a “plain error” by 
allegedly sentencing him to a term of imprisonment above the statutory 
maximum for conspiracy to commit sex trafficking in violation of 18 U.S.C. 
§ 1591.
7  He asserts that “new precedent establishes” that the Court imposed 
a sentence above the statutory maximum, citing United States v. Wei Lin , 
841 F.3d 823 (9th Cir. 2016).8 
 Given that Ellis’s petition raises arguments that he already made, or 
could have made, during his initial collateral proceedings, his petition is 
“second or successive.”  See Leal Garcia v. Quarterman , 573 F.3d 214, 220 
(5th Cir. 2009) (“[W]e define[] a ‘second’ or ‘successive’ petition as one that 
‘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 
 
5  R. Doc. 469. 
6  R. Doc. 546. 
7  Id. at 6. 
8  Id. at 2, 5. 
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an abuse of the writ.’” (quoting In re Cain, 137 F.3d 234, 235 (5th Cir. 
1998))).  Under 28 U.S.C. § 2255, “[a] second or successive motion must be 
certified . . . by a panel of the appropriate court of appeals.”  28 U.S.C. 
§ 2255(h).  This requirement “acts as a jurisdictional bar to the district 
court’s asserting jurisdiction over any successive habeas petition until this 
court has granted the petitioner permission to file one.”  United States v. 
Key, 205 F.3d 773, 774 (5th Cir. 2000) (per curiam).   
 Here, there is nothing in the record that indicates Ellis  sought 
authorization from the Fifth Circuit  to file this successive petition.  
Consequently, this Court lacks jurisdiction to review Ellis’s petition.  As such, 
the Court denies Ellis’s motion to reopen his section 2255 proceeding.  See 
United States v. Mason, 116 F. App’x 469, 470 (5th Cir. 2004) (holding that, 
without authorization from the Fifth Circuit, the “district court would have 
been required to dismiss [defendant’s] motion for lack of jurisdiction”); 
United States v. Fulton, 780 F.3d 683, 686 (5th Cir. 2015) (“[A] district court 
may dispose of applications lacking authorization through dismissal.”). 
 
 
 
 
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For the foregoing reasons, the Court DISMISSES defendant’s motion 
WITHOUT PREJUDICE.  
 
 
New Orleans, Louisiana, this _____ day of March, 2022. 
 
 
_____________________ 
SARAH S. VANCE 
UNITED STATES DISTRICT JUDGE 
18th
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