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Lester v. Oddo

United States District Court, M.D. Georgia, Macon Division

June 7, 2017

DAVID ANTOINE LESTER, Petitioner,
v.
Warden L. J. ODDO, Respondent.

          ORDER

          MARC T. TREADWELL, JUDGE

         Petitioner DAVID ANTOINE LUSTER, an inmate confined at the Allenwood United States Penitentiary in White Deer, Pennsylvania, paid the $5.00 filing fee and filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the Middle District of Pennsylvania. Doc. 1. That Court transferred his case to the Middle District of Georgia. Docs. 4, 5. After reviewing the petition and Luster's litigation history, the Court determines that the action must be DISMISSED for lack of jurisdiction.

         I. CURRENT 28 U.S.C. § 2241 PETITION AND TRANSFER TO THIS COURT

         In his petition, Luster stated that he was convicted and sentenced in the United States District Court for the Middle District of Georgia, but the indictments in his various criminal cases failed to “explicitly express the essential facts of the citation [he] was alleged to have violated.” Doc. 1 at 1, 2. He claimed the indictments failed to provide adequate notice of the charged crimes because they failed to allege “use, attempted use, [or] threatened use of physical force when seeking an enhancement under § 924(c)(1)(A).” Doc. 1 at 6. Luster stated this argument would have been considered “frivolous” before the “landscape of the law” was substantially changed by four Supreme Court decisions: Apprendi v. New Jersey, 530 U.S. 466 (2000), Johnson v. United States, 559 U.S. 133 (2010); Alleyne v. United States, 133 S.Ct. 2151 (2013), and Johnson v. United States, 135 S.Ct. 2551 (2015). Doc. 1 at 4.

         Luster also declared under penalty of perjury that he had never filed a direct appeal from his criminal conviction or sentence, Doc. 1 at 2; that he had never filed a motion under 28 U.S.C. § 2255 challenging his conviction or sentence, Doc. 1 at 4; and that he had never filed a motion in a United States Court of Appeals seeking permission to file a second of successive § 2255 motion, Doc. 1 at 4.

         Based on these statements and representations, the District Court for the Middle District of Pennsylvania determined that

the sentencing court has not been afforded the opportunity to address the validity of [Luster's] pending Johnson based argument. . . . [S]ince § 2255 plainly provides an avenue for litigating the merits of a Johnson based sentencing claim, such an argument should be addressed to the court which is ultimately the most appropriate forum, i.e. the sentencing court. Considering the recent decision of Welch [v. United States, 136 S.Ct. 1257 (2016)], regarding the retroactivity of Johnson, together with the fact that Petitioner did not file a direct appeal or previously seek relief under § 2255, this Court . . . transfer[s] [the case] to the Middle District of Georgia for consideration by the sentencing court.

Doc. 4 at 6-7.

         II. CONVICTION AND PREVIOUS LITIGATION IN THIS COURT

         Luster's petition is now before this Court pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, which provides that

[t]he clerk must promptly forward the petition to a judge under the court's assignment procedure, and the judge must promptly examine it. If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.

         Rule 4 is applicable to § 2241 petitions under Rule 1(b) of the Rules Governing Section 2254 Cases in the United States District Courts.

         Luster was charged in five separate indictments with eight counts of bank robbery and five counts of carrying a firearm during a crime of violence. See United States v. Luster, 5:03-cr-52-CAR (M. D. Ga.); United State v. Luster, 5:03-cr-98-CAR (M.D. Ga.); United States v. Luster, 5:03-cr-99-CAR (M.D. Ga.); United States v. Luster, 5:03-cr-100-CAR (M.D. Ga.); United States v Luster, 5:03-cr-105-CAR (M.D. Ga.). On April 1, 2004, he pled guilty to eight counts of bank robbery and two counts of using or carrying a firearm during a crime of violence, and he is currently serving a total of 535 months in prison. Docs. 44, 47, 80 in United States v. Luster, 5:03-cr-52-CAR (M. D. Ga. Sept. 9, 2009).

         Contrary to Luster's misrepresentations in the § 2241 petition, he did appeal, and the Eleventh Circuit affirmed his conviction and sentence on January 10, 2005. Doc. 56 in United States v. Luster, 5:03-cr-52-CAR (M. D. Ga. Feb. 9, 2005). Also, contrary to his misrepresentations, Luster has filed at least five 28 U.S.C. § 2255 motions challenging his conviction or sentence. Docs. 57, 104, 110, 113, and 119 in United States v. Luster, 5:03-cr-52 (M. D. Ga.). His most recent, filed October 25, 2016, is still pending. Doc. 119 in United States v. Luster, 5:03-cr-52-CAR (M.D. Ga. October 25, 2016). Also contrary to Luster's misrepresentations, [1] he has, on numerous occasions, requested the Eleventh Circuit to authorize the district court to consider a second or successive ยง ...


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