govinfo:USCOURTS-laed-2_13-cr-00286-15

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF LOUISIANA 
 
UNITED STATES  CRIMINAL ACTION 
   
VERSUS 
 
 NO. 13-286 
ANTHONY ELLIS 
 
 SECTION “R” (1) 
 
 
ORDER A ND REASONS  
 
 
 Before the Court is defendant Anthony Ellis’s second 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 “third or successive  petition to reopen” 
his section 2255 proceeding,  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. Doc. 570. 
2  R. Doc. 572. 
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 a motion to 
reopen his pre vious section 2255 proceeding s.6  In that motion, Ellis 
represented 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  The Court denied 
Ellis’s motion because it was an unauthorized successive  petition that the 
Court lacked jurisdiction to consider.8   
On April 25, 2022, Ellis again moved to reopen his section 2255 
proceedings, but does not raise any new claims in his motion.9  Ellis does not 
specify a specific procedural basis for his “motion to reopen,” but suggests he 
wants to reopen his prior section 2255 motions challenging his conviction.   
After a section 225 5 petition has been dismissed, Rule 60(b) of the Federal 
Rules of Civil Procedure remains an available avenue for a federal prisoner 
to reopen his section 2255 proceedings.  “A Rule 60(b) motion that 
 
5  R. Doc. 469. 
6  R. Doc. 546. 
7  Id. at 6. 
8  R. Doc. 567. 
9  R. Doc. 570. 
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(1) presents a new habeas claim, (2) attacks the federal  court’s previous 
resolution of a claim on the merits, or (3) presents new evidence or new law 
in support of a claim already litigated, should be treated as a second or 
successive habeas petition.”  Robinson v. United States , No. 04 -260, 2018 
WL 3046255, at *2 (N.D. Tex. June 20, 2018) (citing Gonzalez v. Crosby, 545 
U.S. 524, 535 (2005)).  Here, Ellis’s motion to reopen his prior section 2255 
proceedings generally reasserts his prior challenges to  the merits of his 
conviction and sentence.  The Court thus finds that Ellis’s motion to reopen 
is a successive habeas petition.  See United States v. Taylor , 270 F. App’x 
363, 365 (5th Cir. 2008) (construing petitioner’s motion for reconsideration 
of the court’s denial of his habeas petition as a successive sectio n 2255 
petition when petitioner essentially reargued his original habeas claims). 
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 “act s as a jurisdictional bar to the district 
court’s asserting jurisdiction over any successive habeas petition until [the 
appellate] court has granted the petitioner permission to file one.”  United 
States v. Key, 205 F.3d 773, 774 (5th Cir. 2000) (per curia m).  Ellis did not 
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receive authorization from the Fifth Circuit to file this successive petition. 10  
Accordingly, this Court lacks jurisdiction to consider his motion.  Given that 
this is defendant’s third habeas petition — and the Fifth Circuit did not 
authorize his prior petitions — the Court finds that dismissal is the 
appropriate course.  United States v. Fulton , 780 F.3d 683, 686 (5th Cir. 
2015) (“[A] district court may dispose of applications lacking authorization 
through dismissal.”). 
For the foregoing reasons, the Court  construes defendant’s motion to 
reopen his habeas proceedings as a successive habeas petition, and  
DISMISSES the petition.  
 
 
New Orleans, Louisiana, this _____ day of June, 2022. 
 
 
_____________________ 
SARAH S. VANCE 
UNITED STATES DISTRICT JUDGE 
 
10  According to the record in this case, the Fifth Circuit dismissed Ellis’s 
petition for want of prosecution on April 14, 2022.  R. Doc. 568. 
14th
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