In Re: Lenthell Rosemond ( 2015 )

Case: 14-10717 Document: 00512902509 Page: 1 Date Filed: 01/14/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-10717
United States Court of Appeals
Fifth Circuit
FILED
In re: LENTHELL LALINCE ROSEMOND, January 14, 2015
Lyle W. Cayce
Movant Clerk
Motion for an order authorizing
the United States District Court for the
Northern District of Texas, Dallas to consider
a successive 28 U.S.C. § 2255 motion
Before PRADO, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
Lenthell Lalince Rosemond, federal prisoner # 21320-077, moves for
authorization to file a successive 28 U.S.C. § 2255 motion to challenge his
convictions for conspiring to commit bank robbery, aiding and abetting entry
into a bank to commit robbery, aiding and abetting armed bank robbery, and
aiding and abetting the carrying of a firearm during a crime of violence. He
seeks to raise claims that (1) he received an improper career offender
adjustment pursuant to U.S.S.G. § 4B1.1 in light of, inter alia, Descamps v.
United States, 133 S. Ct. 2276 (2013), and Moncrieffe v. Holder, 133 S. Ct. 1678
(2013), and (2) his conviction under 18 U.S.C. § 924(c) was unconstitutional in
several respects based upon affidavit evidence.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 14-10717
This court may authorize the filing of a second or successive § 2255
motion only if the movant makes a prima facie showing that his claims rely on
either (1) “newly discovered evidence that, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have found the movant guilty of
the offense” or (2) “a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was previously unavailable.”
§ 2255(h); see also 28 U.S.C. § 2244(b)(3)(C).
In re Jackson makes clear that “[w]hen a movant relies on a new rule of
constitutional law to make the showing required under § 2255(h)(2), he ‘must
point to a Supreme Court decision that either expressly declares the collateral
availability of the rule (such as by holding or stating that the particular rule
upon which the petitioner seeks to rely is retroactively available on collateral
review) or applies the rule in a collateral proceeding.’” No. 14-30805, ___ F.3d
___, 2015 WL 127370, at *1 (5th Cir. Jan. 8, 2015) (per curiam) (quoting In re
Smith, 142 F.3d 832, 835 (5th Cir. 1998), and citing In re Tatum, 233 F.3d 857,
859 (5th Cir. 2000) (per curiam)). The Supreme Court has not made Descamps
retroactively applicable to cases on collateral review. In re Jackson, 2015 WL
127370, at *3. 1
Rosemond also purports to rely on newly discovered evidence in the form
of affidavits from two of his co-conspirators to support claims that he was
improperly convicted of aiding and abetting the carrying of a firearm during a
crime of violence. Rosemond claims in his motion that someone named
“Bubba” provided his co-conspirators with the firearm at issue; yet, the
1 To the extent Rosemond relies on Moncrieffe for relief, he has not shown that
Moncrieffe contains a new rule of constitutional law that applies retroactively to cases on
collateral review. Cf. In re Jackson, 2015 WL 127370, at *1–2; see also Moncrieffe, 133 S. Ct.
at 1687.
2
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No. 14-10717
affidavits do not mention “Bubba.” Moreover, the affidavits do not “establish
by clear and convincing evidence that no reasonable factfinder would have
found [Rosemond] guilty of the [§ 924(c)] offense,” particularly since Rosemond
fails to summarize or address with any specificity the evidence of his guilt that
was adduced at trial. § 2255(h)(1).
Rosemond has not made the necessary showing. IT IS ORDERED that
Rosemond’s motion for authorization to file a successive § 2255 motion is
DENIED.
3