United States of America v. Mackey

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA 	CRIMINAL ACTION
VERSUS 	NO. 00-316
EVARISTUS B. MACKEY, JR. 	SECTION: “D”
ORDER AND REASONS
Before the Court is a Motion to Vacate, Set Aside, or Correct a Sentence
pursuant 	to 	28 	U.S.C. 	§ 	2255, 	filed 	by 	Defendant 	Evaristus 	B. 	Mackey, 	Jr.
(“Mackey”).1 The Government Opposes the Motion,2 and Mackey has filed a Reply.3
After careful consideration of the parties’ memoranda, the facts, and the law, the
Court DENIES the Motion.
I. 	FACTUAL AND PROCEDURAL BACKGROUND
In September 2000, Mackey was a suspect in an investigation of a pair of armed
robberies occurring in the French Quarter of New Orleans, Louisiana.4 On September
15, 2000, while conducting a traffic stop, law enforcement officers identified Mackey,
who was in possession of a firearm, and arrested him.5 Mackey appeared before the
duty magistrate judge for his detention hearing on September 18, 2000, in which the
magistrate judge ordered Mackey’s detainment.6 On October 5, 2000, a federal grand
jury indicted Mackey for a violation of 18 U.S.C. § 922(g)(1).7 Thereafter, on December
1 R. Doc. 210; R. Doc. 211.
2 R. Doc. 212.
3 R. Doc. 217.
4 R. Doc. 86.
5 Id.
6 R. Doc. 85 at p. 1.
7 R. Doc. 2.
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28, 2000, the Government notified Mackey of an Armed Career Criminal sentencing
enhancement pursuant to 18 U.S.C. § 924(e).8
A Second Superseding Indictment was issued against Mackey on February 22,
2001, in which the grand jury added two additional counts against Mackey for
violations 	of 	18 	U.S.C. 	§§ 	922(g)(1) 	and 	924(e).9 	The 	above-captioned 	matter
proceeded to trial on June 4, 2001, and the jury rendered a guilty verdict as to all
three counts of the Second Superseding Indictment on June 5, 2001.10 Judge Feldman
sentenced Mackey to 327 months in prison on September 5, 2001.11 Mackey appealed
his sentence, and the Fifth Circuit affirmed his sentence on April 30, 2002.12
Mackey subsequently filed numerous motions to vacate, set aside, or correct a
sentence pursuant to § 2255.13 All motions were denied.14 After considering the
numerous motions, the Fifth Circuit personally sanctioned Mackey for frivolous and
repetitive filings.15 In fact, due to his failure to pay the sanctions, the Fifth Circuit
barred Mackey “from filing in this court or in any court subject to this court’s
jurisdiction any challenge to this conviction or sentence until the sanction is paid in
8 R. Doc. 9.
9 R. Doc. 23.
10 R. Doc. 50.
11 R. Doc. 54. The Court notes that the Judgment states that “[t]he defendant has been convicted as
charged of the offense(s) of 18 USC 922(9)(1) & 924(e) Felon in Possession of a Firearm as charged in
Counts 1, 2 & 3 of the 3rd superseding indictment.” R. Doc. 54 at p. 1. However, this appears to be an
administrative oversight as there was not a third superseding indictment in this matter – only a second
superseding indictment. See R. Doc. 23.
12 R. Doc. 62. This matter was transferred to the undersigned on January 31, 2022. See R. Doc. 189.
13 See R. Docs. 80, 82, 139, 148, and 161.
14 See R. Docs. 86, 146, 151, and 166.
15 R. Doc. 151 at p. 2; R. Doc. 177-2 at p. 2.
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full, unless he first obtains leave of the court in which he seeks to file such
challenge.”16
Thereafter, Mackey continued to file motions challenging his sentence, and the
Court denied the motions for failure to comply with the Fifth Circuit’s order.17 On
August 5, 2022, the Fifth Circuit issued a notice advising the Court that Mackey paid
his outstanding monetary sanctions.18 After paying his monetary sanctions, Mackey
mailed ten letters to the Court pertaining to his conviction and sentencing.19 Giving
rise to the instant Motion, Mackey sent a letter to the Court on July 2, 2024, which
was entered into the record on July 8, 2024, seeking relief from his armed career
criminal designation pursuant to the Supreme Court’s decision in United States v.
Erlinger.20 On January 22, 2025, this Court issued an Order stating that, because
Mackey’s letter was filed within one year of the Erlinger decision, the Court construes
it as a motion to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255
(the “Motion”) and set forth a briefing scheduling pertaining to the Motion.21
In the Motion, Mackey asserts that his designation as an Armed Career
Criminal Offender is invalid because he was unable to demand that the jury
determine whether his prior offenses under the Armed Career Criminal Act were
committed on separate occasions.22 Thus, pursuant to Erlinger, Mackey alleges that
16 R. Doc. 177-2 at p. 2.
17 See R. Docs. 184, 186, 190, and 194.
18 R. Doc. 195.
19 R. Docs. 197, 198, 199, 200, 201, 202, 205, 206, 207, and 208.
20 602 U.S. 821 (2024); R. Doc. 208.
21 R. Doc. 210.
22 R. Doc. 211 at p. 2.
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the Court must vacate his Armed Career Criminal Offender enhancement.23 Mackey
further argues that the Court should apply United States Sentencing Guideline
Commission (“U.S.S.G.”) Amendment 821 to reduce his offense level by two levels and
grant him immediate release.24 Thus, according to Mackey, his Motion should be
granted.25
The Government opposes the Motion.26 As an initial matter, the Government
argues that because Mackey has already filed an appeal and filed numerous § 2255
motions, the Court should construe the instant Motion as a “second or successive”
§ 	2255 motion that requires prior Fifth Circuit authorization to bring before this
Court.27 The Government contends that because “Mackey has not shown that the
instant petition satisfies the requirements to file a second or successive § 2255
petition[,]” the Court “should dismiss this case for want of jurisdiction without
prejudice to Mackey’s right to submit a motion for leave to file a second or successive
§ 2255 motion with the U.S. Fifth Circuit Court of Appeals pursuant to 28 U.S.C.
§ 2244(b)(3)(A).”28 In the alternative, the Government asserts that “this Court may
transfer this petition to the U.S. Fifth Circuit for consideration as a motion for leave
to file a second or successive petition.”29 Moreover, the Government claims that
Erlinger does not apply retroactively and instead is a procedural rule that does not
23 Id. at pp. 2–3.
24 Id.; see R. Doc. 209.
25 R. Doc. 211 at p. 2.
26 R. Doc. 212.
27 Id. at p. 4.
28 Id. at p. 5.
29 Id.
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apply on collateral review of a sentencing.30 Therefore, according to the Government,
the instant Motion is time-barred pursuant to 28 U.S.C. §§ 2255(f)(3) and 2255(h) and
should be dismissed “for want of jurisdiction or transfer[red] [] for consideration to
the U.S. Fifth Circuit Court of Appeals.”31
Mackey has filed a Reply.32 As an initial matter, Mackey reurges his previous
argument that there was no probable cause for his initial arrest.33 Further, Mackey
contends that the use of his state court convictions as predicate offenses under the
Armed Career Criminal Act violates the Fifth Amendment’s prohibition on “double
jeopardy,” as he alleges that he is being punished twice for his state court convictions
in violation of his state court plea agreements.34 Mackey also invokes U.S.S.G.
Amendments 433 and 709 to contest the validity of his judgment and sentence.35
Thus, according to Mackey, he should be released immediately.36
II. 	LEGAL STANDARD
Under 28 U.S.C. § 2255, a federal prisoner serving a court-imposed sentence
“may move the court which imposed the sentence to vacate, set aside or correct the
sentence.”37 	The statute sets forth four bases on which a motion may be made: (1)
30 Id. at pp. 6–7.
31 Id. at p. 8.
32 R. Doc. 217.
33 Id. at p. 3.
34 Id. at pp. 4–5.
35 Id. at pp. 5–6.
36 Id. at p. 8. In addition to his Reply, Mackey filed an Affidavit in Support of the instant Motion on
July 14, 2025. R. Doc. 222. Mackey sets forth a wide net of allegations challenging his judgment and
sentence. He raises an ineffective assistance of counsel claim, a “defective sentence” claim arising from
a defective indictment, a claim for a violation of the prohibition on double jeopardy, a claim for an
illegal search and seizure of the trunk of his car commencing at the time of his arrest, and a claim
alleging that law enforcement lacked Article III standing to file a criminal complaint against him. R.
Doc. 222 at pp. 2–19.
37 28 U.S.C. § 2255(a).
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the sentence was imposed in violation of the Constitution or laws of the United States;
(2) the court lacked jurisdiction to impose the sentence; (3) the sentence exceeds the
statutory maximum sentence; or (4) the sentence “is otherwise subject to collateral
attack.”38 	“‘Relief 	under 	28 	U.S.C. 	§ 	2255 	is 	reserved 	for 	transgressions 	of
constitutional rights and for a narrow range of injuries that could not have been
raised on direct appeal and would, if condoned, result in a complete miscarriage of
justice.’”39
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) establishes a
“gatekeeping mechanism for the consideration of second or successive filings in the
federal 	courts.”40 	“A 	defendant 	is 	generally 	permitted 	only 	one 	motion
under § 2255 and may not file successive motions without first obtaining this Court's
authorization.”41 28 U.S.C. § 2255(h) provides that:
A second or successive motion must be certified as provided in section
2244 by a panel of the appropriate court of appeals to contain—
(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.42
38 Id.
39 United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (quoting United States v. Segler, 37 F.3d
1131, 1133 (5th Cir. 1994)).
40 Bowe v. United States, No. 24-5438, 2026 WL 70342, at *6 (U.S. Jan. 9, 2026)(citation modified).
41 United States v. Hernandes, 708 F.3d 680, 681 (5th Cir. 2013)(citing 28 U.S.C.§ 2255(h)).
42 28 U.S.C. § 2255(h); see Bowe, 2026 WL 70342, at *15 (“the best textual reading of both §
2255(h) and § 2244(b) is that, when a federal prisoner moves for authorization, a panel can authorize
the filing if it satisfies one of the two grounds in § 2255(h), the two—and only two—conditions in which
a second or successive § 2255 motion may proceed.”)(citation modified).
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Cross referenced in § 2255(h), 28 U.S.C. § 2244(b)(3)43 provides, in pertinent part:
(A) Before a second or successive application permitted by this section
is filed in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the district
court to consider the application.
(B) A motion in the court of appeals for an order authorizing the district
court 	to 	consider 	a 	second 	or 	successive 	application 	shall 	be
determined by a three-judge panel of the court of appeals.
(C) The court of appeals may authorize the filing of a second or
successive application only if it determines that the application
makes a prima facie showing that the application satisfies the
requirements of this subsection.
(D) The court of appeals shall grant or deny the authorization to file a
second or successive application not later than 30 days after the
filing of the motion.44
Thus, “§ 2244(b)(3)(A) acts as a jurisdictional bar to the district court’s asserting
jurisdiction over any successive habeas petition until this court has granted the
petitioner permission to file one.”45
III. 	ANALYSIS
Mackey asserts that the Supreme Court’s decision in Erlinger requires the
Court to vacate his designation as an Armed Career Criminal Offender, thereby
43 In Bowe, the Supreme Court determined that only §§ 2244(b)(3)(A) – (b)(3)(D) are cross-referenced
in § 2255(h). See Bowe, 2026 WL 70342, at *10–16.
44 28 U.S.C. §§ 2244(b)(3)(A) – (b)(3)(D). The Supreme Court has held that §§ 2244(b)(3)(A) – (b)(3)(D)
“all describe the procedures that a panel must follow in certifying a second or successive filing, and
are therefore incorporated by § 2255(h)’s cross-reference.” Bowe, 2026 WL 70342, at *10. However,
Ҥ 2244(b)(1) does not apply to second or successive motions filed by federal prisoners challenging
their convictions or sentences under § 2255(h).” Id. at *16. Nor does § 2244(b)(2). Id. at *14 (“The
upshot of amicus’s argument would therefore be that § 2255(h) incorporates not only § 2244(b)(1)’s old-
claim bar, but also § 2244(b)(2)’s substantive gatekeeping requirements for new claims. Section
2255(h), however, contains its own substantive requirements that are irreconcilable with those in §
2244(b).”).
45 U.S. v. Key, 205 F.3d 773, 774 (5th Cir. 2000).
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entitling him to immediate release.46 The Government, in opposition, asserts that the
Court should construe the instant Motion as a successive § 2255 Motion and thus
dismiss the Motion or transfer it to the Fifth Circuit for consideration.47 Having
previously converted Mackey’s July 2, 2024 Letter to the Court as a Motion to Vacate,
Set Aside, or Correct Sentence under § 2255,48 the Court agrees with the Government.
The Court first determines whether Mackey’s Motion is successive under
§ 2255. The phrase “second or successive” under the AEDPA “is a term of art—later-
in-time petitions are not always ‘second or successive.’”49 “Instead, a later petition
is successive when it: 1) raises a claim challenging the petitioner’s conviction or
sentence that was or could have been raised in an earlier petition; or 2) otherwise
constitutes an abuse of the writ.”50 Here, Mackey raises a claim pursuant to Erlinger
for the first time. While Mackey raises a claim that could not have been raised in an
earlier petition, “the timing of [a] decision[] alone does not render [Mackey’s] petition
non-successive.”51
46 R. Doc. 211.
47 R. Doc. 212.
48 R. Doc. 210. The Supreme Court has stated that when a court recharacterizes a pro se litigant’s
motion a first motion under § 2255, “the district court must notify the pro se litigant that it intends to
recharacterize the pleading, warn the litigant that this recharacterization means that any
subsequent § 2255 motion will be subject to the restrictions on second or successive motions, and
provide the litigant an opportunity to withdraw the motion or to amend it so that it contains all the §
2255 claims he believes he has. If the court fails to do so, the motion cannot be considered to have
become a § 2255 motion for purposes of applying to later motions the law's second or successive
restrictions.” Castro v. U.S., 540 U.S. 375, 383 (2003)(citation modified). Such specific notice, however,
is not required where a litigant has previously filed § 2255 motions. See In re Nailor, 487 F.3d 1018,
1023 n.3 (6th Cir. 2007); U.S. v. Nelson, 465 F.3d 1145, 1149 (10th Cir. 2006). Such is the case here,
as Mackey has previously filed numerous § 2255 motions. See R. Docs. 80, 82, 139, 148, and 161.
Nonetheless, the Court provided notice to Mackey on January 22, 2025. See R. Doc. 210.
49 United States v. Muhammad, 124 F.4th 955, 956 (5th Cir. 2025)(quoting Magwood v. Patterson, 561
U.S. 320, 331–32 (2010)).
50 U.S. v. Fulton, 780 F.3d 683, 685 (5th Cir. 2015) (citation modified).
51 Id.
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Mackey is once again challenging his September 5, 2001 judgment that
resulted in his sentence of imprisonment. He has already done so several times
before,52 and Judge Feldman’s January 15, 2004 Order and Reasons denied Mackey’s
§ 2255 motion on the merits.53 Insofar as Mackey invokes U.S.S.G. Amendments 433
and 709 in support of his Motion, the Court notes that such claims could have been
raised in his prior § 2255 motions, thereby making such claims successive.54
Furthermore, to the extent Mackey relies on Amendment 821 to argue that the Court
should grant him release, the Court has previously denied Mackey’s request for a
sentence reduction under Amendment 821.55 Thus, the Court determines that
Mackey’s Motion is successive because it is attacking the same September 5, 2001
judgment that has been attacked in his prior motions.56
Having determined that the Motion is successive, the Court turns to the
requirement that before filing a successive § 2255 motion with the district court, “an
applicant must first obtain authorization from the court of appeals. The lack of such
authorization is a jurisdictional bar to the district court’s consideration, and a district
52 See R. Docs. 80, 82, 139, 148, and 161.
53 Judge Feldman held that “[t]he Court finds that all of the petitioner’s claims, except the ineffective
assistance of counsel claim, are barred for failing to show either ‘cause’ or ‘prejudice.’ 	The Court
further finds that counsel's performance did not violate the petitioner’s Sixth Amendment right to
effective counsel. The Court further finds that each of the barred claims is also meritless.” R. Doc. 86
at pp. 17–18.
54 Amendment 433 became effective on November 1, 1991. See U.S. v. Fair, No. 97-20206., 1997 WL
533548, at *1 (5th Cir. Aug. 15, 1997)(“Amendment 433 . . . became effective November 1, 1991.”).
Amendment 709 became effective on November 1, 2007. See U.S. Bogard, 436 Fed. Appx. 354, 355
(5th Cir. 2011)(“The effective date of Amendment 709 was November 1, 2007 . . . .”).
55 R. Doc. 208.
56 As it pertains to Mackey’s claims set forth in a supplemental brief, via an Affidavit, the Court notes
that it has not granted Mackey leave of court for supplemental briefing. See supra note 36. The Court
therefore does not consider such claims as they are improperly before the Court. Nonetheless, the
Court notes its serious skepticism as to the merits of each claim in the Affidavit, as the claims bear
resemblance to “Mackey’s trademark incomprehensible requests for relief [.]” R. Doc. 184 at p. 2 n.2.
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court 	may 	dispose 	of 	applications 	lacking 	authorization 	through 	dismissal.”57
“Alternatively, a district court may transfer a petition lacking authorization to this
court for want of jurisdiction upon a finding that the petition is successive.”58 Here,
because Mackey has failed to first obtain authorization from the Fifth Circuit, the
Court determines that it lacks jurisdiction over the instant Motion. Accordingly, the
Court transfers the instant Motion to the Fifth Circuit.59
IV. 	CONCLUSION
For the reasons set forth above,
IT IS HEREBY ORDERED that Defendant’s Motion to Vacate, Set Aside, or
Correct a Sentence pursuant to 28 U.S.C. § 225560 is TRANSFERRED to the United
States Court of Appeals for the Fifth Circuit.
New Orleans, Louisiana, February 18, 2026.
_________________________________
WENDY B. VITTER
United States District Judge
57 U.S. v. Fulton, 780 F.3d 683, 686 (5th Cir. 2015).
58 Id.
59 See In re Hartzog, 444 Fed. Appx. 63, 65 (5th Cir. 2011)(“If a second or successive section 2255 motion
is filed in the district court before leave of this Court has been obtained, the district court may either
dismiss the motion for lack of jurisdiction, or it may transfer the motion to this Court.”).
60 R. Doc. 211.
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