Background
Robert Thomas, Jr. filed an application seeking authorization to file a second or successive motion under section two thousand two hundred fifty-five of title twenty-eight of the United States Code. He sought to assert that his career-offender sentence was illegal following the expungement of his Missouri marijuana-related convictions. The case was held in abeyance pending the outcome of a related matter, Lozano versus United States.
The court’s reasoning
The court determined that Thomas’s claim stemming from the expungement order could not have been presented in his first section two thousand two hundred fifty-five motion. Consequently, the newly ripe claim is not second or successive. The court cited Lozano versus United States for the conclusion that a newly arisen claim challenging a career-offender sentence following an expungement is not successive. The court also cited Crouch versus Norris, concluding that the proposed habeas petition was not second or successive within the meaning of section two thousand two hundred forty-four, and therefore the application for permission to file it was unnecessary.
What it means going forward
Thomas does not require the court’s permission to pursue his section two thousand two hundred fifty-five claim in the district court. However, he remains subject to the Eighth Circuit’s precedent regarding whether a conviction is considered expunged for Guidelines purposes.
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