UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

v. ) No. 2:11-CR-155 

) (2:13-CV-271)

)

LATOYA TRAVIS, )

)

Defendant. )

OPINION AND ORDER

This matter is before the Court on the “Motion for Relief

Pursuant to Title 28 U.S.C. § 2255(f)(3)(f)(4),” filed by

defendant, Latoya Travis, on August 5, 2013. (DE #53.) For the

reasons set forth below, the motion is DISMISSED for lack of

jurisdiction. The Clerk is ORDERED to DISMISS the civil case. 

Further, this Court declines to issue a certificate of

appealability. 

BACKGROUND

On January 20, 2011, this Court sentenced Defendant, LaToya

Travis (“Travis”), to a 42 month term of imprisonment in cause

number 2:08-CR-156. At the sentencing hearing, the Court allowed

her to temporarily remain on bond but ordered that she report to

the Bureau of Prisons on February 22, 2011. Travis failed to do

so, which led to an indictment in the instant criminal cause

case 2:13-cv-00271-RL document 1 filed 08/30/13 page 1 of 6
number. 

Travis entered into a written plea agreement with the

government on April 26, 2012, wherein she waived her right to

challenge her conviction or sentence on any ground, including any

claim of ineffective assistance of counsel unless the claimed

ineffective assistance of counsel relates directly to the waiver or

its negotiation.1

 In exchange, the Government agreed to make a

non-binding recommendation to the Court that Travis receive a

reduction for acceptance of responsibility and that she receive a

sentence at the mid-level of the applicable Sentencing Guidelines

range. The plea agreement was signed by Travis, her attorney,

Visvaldis Kupsis, and the attorney for the Government, Gary Bell. 

A change of plea hearing was held before Magistrate Judge

Andrew P. Rodovich on May 14, 2012; the hearing was digitally

recorded, and Judge Rodovich subsequently submitted findings and

recommendations to this Court. On May 31, 2012, pursuant to

Travis’ plea and the findings and recommendations of Judge

Rodovich, this Court adjudged Travis guilty of one count of Failure

to Surrender for Service of Sentence in violation of Title 18

U.S.C. section 3146(a)(2). On August 2, 2012, Travis was sentenced

to a fifteen (15) month prison term, to run consecutive to the term

of imprisonment imposed in cause number 2:08-CR-156, plus a one (1)

year term of supervised release, to run concurrently to the period

1

 The written plea agreement is found at DE #8.

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of supervision ordered in 2:08-CR-156. This sentence was within

the Sentencing Guidelines range of twelve (12) to eighteen (18)

months. 

On September 20, 2012, Travis filed a section 2255 motion with

the Court, claiming that she was entitled to a reduction in her

sentence because: (1) she was confined in harsh pretrial

conditions; (2) she lived in substandard conditions while awaiting

sentencing; (3) she did not see her psychiatrist; and (4) she was

subjected to degrading conditions while being improperly placed on

suicide watch. That motion was denied, and this Court declined to

issue a certificate of appealibility. (DE #39.) Defendant Travis

subsequently filed a Notice of Appeal (DE #41), and her appeal is

currently pending before the Seventh Circuit Court of Appeals in

cause number 13-1690. (See DE #43.) Travis filed the instant

“Motion for Relief Pursuant to Title 28 U.S.C. § 2255(f)(3)(f)(4)”

on August 5, 2013. (DE #53.) In it she argues that she received

a two (2) point “enhancement,” which increased her sentencing range

in violation of the law because such “enhancement” was not

“submitted to the jury and forund [sic] beyond a reasonable doubt.” 

(Id. at 1-2.) Travis claims that her sentence “should have, and

would have been much lower than 15 months.” (Id. at 2). 

DISCUSSION

Following a direct appeal, a defendant generally has one

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opportunity to challenge her conviction and sentence. Suggs v.

United States, 705 F.3d 279, 281-82 (7th Cir. 2013); 28 U.S.C. §

2255(a), (h). Should a defendant wish to file a second or

successive section 2255 motion challenging that same conviction or

sentence, she must first gain authorization to do so from the court

of appeals; otherwise, the district court does not have

jurisdiction to consider the motion. Suggs, 705 F.3d at 282; 28

U.S.C. §§ 2244(a)-(b), 2255(h). In general, only those successive

motions which challenge the underlying conviction and present newly

discovered evidence of defendant’s innocence or rely on a new

retroactive constitutional law will be certified by the court of

appeals for district court review. Suggs, 705 F.3d at 282-83; 28

U.S.C. § 2255(h). “No matter how powerful a petitioner’s showing,

only [the Seventh Circuit] may authorize the commencement of a

second or successive petition.” Nunez v. United States, 96 F.3d

990, 991 (7th Cir. 1996). As the Nunez Court explained:

From the district court's perspective, it is

an allocation of subject-matter jurisdiction

to the court of appeals. A district court

must dismiss a second or successive petition,

without awaiting any response from the

government, unless the court of appeals has

given approval for its filing. . . . A second

or successive collateral attack may no more

begin in the district court than a criminal

prosecution may commence in the court of

appeals. 

Nunez, 96 F.3d at 991. 

Because Travis has already filed a section 2255 motion with

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this Court, her current section 2255 motion is considered a second

or successive collateral attack on her conviction or sentence. She

has not obtained (or even sought as far as this Court is aware)

permission from the Seventh Circuit Court of Appeals to file this

successive section 2255 motion, and, therefore, it must be

dismissed. The fact that Travis’ appeal is still pending does not

change this analysis. See Phillips v. United States, 668 F.3d 433,

435 (“Nothing in the language of § 2244 or § 2255 suggests that the

time-and-number limits are irrelevant as long as a prisoner keeps

his initial request alive through motions, appeals, and

petitions.”). Therefore, Travis’ motion is DISMISSED for lack of

jurisdiction. 

Certificate of Appealability

Pursuant to Rule 11 of the Rules Governing Section 2255

Proceedings, a district court must “issue or deny a certificate of

appealability when it enters a final order adverse to the

applicant.” A certificate of appealability may issue only if the

applicant “has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a

showing, a defendant must show that “reasonable jurists could

debate whether (or, for that matter, agree that) the motion should

have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed

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further.” Slack v. McDaniel, 529 U.S. 473, 484 (U.S. 2000)

(internal quotation marks and citation omitted). 

For the reasons set forth above, the Court concludes that

Travis’ motion is successive and has not been certified by the

Seventh Circuit Court of Appeals. The Court finds no basis for a

determination that reasonable jurists would find this decision

debatable or incorrect or that the issues deserve encouragement to

proceed further. Therefore, a certificate of appealability will

not be issued. 

 

DATED: August 30, 2013 /s/RUDY LOZANO, Judge

United States District Court

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