United States v. Sellers ( 2001 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-31294
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT DUPRE,
Defendant-Appellant,
*********************
Consolidated with
No. 99-31295
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
W. HAROLD SELLERS,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
No. 99-CV-200
No. 93-CR-327-2-C
January 9, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Federal prisoners Robert Dupre and W. Harold Sellers appeal
from the district court’s denial of their motions to vacate,
correct, or set aside their sentences under 28 U.S.C. § 2255. The
appellants contend that their Fifth Amendment rights were violated
because the indictment failed to state every element of each
offense and that their convictions were constitutionally unfair
because the district court failed to submit materiality to the jury
on their bank fraud (18 U.S.C. 1344) and false-statement offenses
(18 U.S.C. § 1014).
We have reviewed the record, the briefs of the parties, and
the applicable law, and we find no reversible error. The
appellants did not challenge the sufficiency of the indictment in
their § 2255 motions but waited until the third supplement to the
motion for reconsideration to raise this claim. This court has
indicated that a civil litigant may not use Rule 59(e) to raise new
claims that could have been raised prior to the district court’s
entry of a final judgment. See Trust Co. Bank v. U.S. Gypsum Co.,
950 F.2d 1144, 1152 & n.16 (5th Cir. 1992) (“[A] litigant cannot
... use rule 59(e) to expand the judgment to encompass new issues."
(internal quotation marks and citations omitted)). The appellants
had ample opportunity to raise this claim prior to the denial of
their § 2255 motions. Their attempt to raise a sufficiency-of-the-
indictment claim in the Rule 59(e) motion was untimely. See id.
The district court should have treated the third supplement to
the motion for reconsideration attacking the validity of the
appellant’ convictions as a successive § 2255 motion. See United
2
States v. Rich, 141 F.3d 550, 551-53 (5th Cir. 1998), cert. denied,
526 U.S. 1011 (1999). Because a successive § 2255 motion requires
certification from this court prior to filing in the district
court, the district court lacked jurisdiction to consider the
claims in the third supplement to the motion for reconsideration.
See 28 U.S.C. § 2244(b); Hooker v. Sivley, 187 F.3d 680, 681-82
(5th Cir. 1999). Because the district court did not have
jurisdiction, this court has no jurisdiction to review the issue on
the merits. See United States v. Key, 205 F.3d 773, 774-75 (5th
Cir. 2000).
The questions of materiality with respect to 18 U.S.C. §§ 1344and 1014 were resolved in this court’s original appeal. This court
determined prophylactically that “appellants’ convictions will
stand even if materiality is an element of a § 1344 offense and the
jury instructions were erroneous”. United States v. Dupre, 117
F.3d 810, 816 (5th Cir. 1997)(emphasis added), cert. denied, 522
U.S. 1078 (1998). The Dupre panel also rejected appellants’
argument that the district court had erred in failing to submit
materiality to the jury on the § 1014 counts. Id. at 818. “It is
settled in this Circuit that issues raised and disposed of in a
previous appeal from an original judgment of conviction are not
considered in § 2255 Motions.” United States v. Kalish, 780 F.2d
506, 508 (5th Cir.), cert. denied, 476 U.S. 118 (1986).
The district court’s judgment denying § 2255 relief is
AFFIRMED.
3