Flowers v. United States
- Vincent Briccetti
- 7:20-cv-10331
- U.S. District Court · Southern District of New York
- 3
In Flowers v. United States, Judge Briccetti denied Flowers’s challenge to his firearm conviction and dismissed the petition.
Rakeem Flowers, whose challenge to his Count Three firearm conviction was denied and whose petition was dismissed.
What happened
In Flowers v. United States, Rakeem Flowers asked the court to vacate his conviction on Count Three, which involved firearms and was based partly on a marijuana conspiracy.
The court held that Flowers’s second challenge was not barred as a second or successive filing because he filed it before the time to appeal his earlier case ended. But the court rejected the challenge on the merits, ruling that the marijuana conspiracy was a valid basis for the firearm conviction and that the Supreme Court’s decisions in Davis and Dimaya did not apply.
Judge Vincent L. Briccetti denied the motion and dismissed the petition. He also declined to issue a certificate allowing an appeal and denied permission to appeal without paying filing fees.
The detailed version
- Flowers v. United States · No. 7:20-cv-10331
- Vincent Briccetti
- Dec. 21, 2020
Background
Rakeem Flowers filed a motion under 28 U.S.C. § 2255, a procedure allowing a federal prisoner to challenge a conviction or sentence. He challenged his conviction on Count Three of a superseding information. That count charged him with using, carrying, and possessing firearms in furtherance of the racketeering conspiracy in Count One and the marijuana conspiracy in Count Two, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2.
Flowers had previously filed a § 2255 motion challenging the same conviction under United States v. Davis. The court denied that earlier motion on November 18, 2020, ruling that the marijuana conspiracy in Count Two was a valid predicate for the firearm conviction. Flowers then filed the present motion, relying on Sessions v. Dimaya instead.
Successive-motion issue
The court explained that a later § 2255 motion is generally treated as a “second or successive” motion requiring advance authorization from the U.S. Court of Appeals for the Second Circuit. But a motion is not considered second or successive until the petitioner’s opportunity to seek appellate review of the earlier decision has expired.
Flowers filed this motion on November 29, 2020, before the 30-day period to appeal the denial of his first motion had ended. The court therefore determined that this motion was not a second or successive motion under § 2255(h).
Merits and ruling
The court nevertheless found the motion entirely without merit. It stated that Flowers’s conviction on Count Three was valid because it was based on the marijuana conspiracy in Count Two. The court ruled that Davis did not apply and that Dimaya did not apply.
Judge Vincent L. Briccetti denied Flowers’s § 2255 motion and dismissed the petition. The court also ruled that no certificate of appealability would issue because Flowers had not made a substantial showing that a constitutional right was denied. It certified that an appeal would not be taken in good faith and denied permission to appeal without paying filing fees. The clerk was instructed to close the case.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.