United States v. Fulton

March 17, 2015 by Justia

Kendrick Fulton appealed the denial of his successive 28 U.S.C. 2255 petition. In his first, Fulton argued he received ineffective assistance of counsel at the plea-bargaining stage, specifically, that he received inadequate information from counsel to allow him to make an informed decision on whether to accept a plea offer by the Government. After an evidentiary hearing, the magistrate judge made two findings regarding this claim: (1) the performance of Fulton’s counsel was not deficient, since counsel adequately informed Fulton of the plea offer and the sentencing effect should Fulton accept the offer; and (2) assuming counsel’s deficient performance, that Fulton had not shown prejudice since he failed to proffer evidence of his serious consideration of the plea offer. In his second § 2255 motion, Fulton again asserted his ineffective assistance of counsel claim at the plea-bargaining stage, based on the same allegations as his initial 2255 motion. The district court transferred the motion to the Fifth Circuit as a successive 2255 motion, and denied Fulton’s subsequent motion for a certificate of appealability (COA). In a separate proceeding, Fulton filed a motion for authorization to file a successive 2255 petition, which was denied. Notably, Fulton expressly reiterated the same argument as one of his bases for a successive motion. Fulton then filed a motion for a COA in this proceeding, which the Fifth Circuit initially denied. On reconsideration, however, the Court ultimately granted a COA on two issues: "(1) whether a COA is required, i.e., whether the district court order transferring appellant’s . . . [section] 2255 motion to this court is a final order as envisioned by 28 U.S.C. [section] 2253(c)(1)(B), and (2) whether the district court erred by transferring the [section] 2255 motion as a successive habeas petition." Because Fulton's petition as presented to the district court was correctly determined to be successive, the Fifth Circuit affirmed the district court. Fulton’s motion for authorization was denied by another panel, which prevented jurisdiction from vesting in a district court. The Fifth Circuit therefore remanded to the district court with instructions to dismiss Fulton’s 2255 petition for want of jurisdiction. View "United States v. Fulton" on Justia Law