USA v. Paxton

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
UNITED STATES OF AMERICA 	PLAINTIFF
VS. 	Criminal No. 6:22-cr-60003-SOH-MEF-1
BARRY W. PAXTON 	DEFENDANT
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Before the Court is Defendant’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody filed on August 9, 2024. (ECF No. 42). Because
Defendant has two criminal cases (the case styled above and Case No. 6:22-cr-60032-SOH-MEF),
and it appeared from the allegations in his § 2255 Motion that only his sentence imposed in Case
No. 6:22-cr-60032-SOH-MEF was implicated, the Court entered an Order on August 14, 2024,
seeking clarification from Defendant on his asserted grounds for relief, if any, in this case. (ECF
No. 44). Specifically, if Defendant intended to assert any grounds for habeas relief in this case,
the Order directed him to file an Amended Motion Under § 2255 in this case no later than
September 16, 2024. He has not done so.
DISCUSSION
As just noted above, federal charges were brought against Defendant in two cases before
this Court. 	On March 2, 2022, in Case No. 6:22-cr-60003-SOH-MEF-1, six drug trafficking
charges were brought against the Defendant. On October 7, 2022, the Defendant pleaded guilty
to Count Six of the Indictment charging him with possession with intent to distribute more than
50 grams of methamphetamine. (ECF Nos. 26, 27). On October 30, 2023, he was sentenced to
188 months imprisonment, followed by four years of supervised release, no fine, no restitution,
and a $100 special assessment was imposed. (ECF Nos. 36, 37).
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On August 12, 2022, and pursuant to Fed. R. Crim P. 20, a Consent to Transfer of Case for
Plea and Sentence was filed in Case No. 6:22-cr-60032-SOH-MEF-1. In that case, the Defendant
was charged with submitting a false and fraudulent letter to the Veteran’s Administration when he
knew the document was fraudulent and that the doctor alleged to have completed the letter did not,
in fact, complete the document. Defendant also pleaded guilty to this offense on October 7, 2022.
(Case No. 6:22-cr-60032-SOH-MEF-1, ECF Nos. 5, 6). On October 30, 2023, he was sentenced
in that case to 30 months of imprisonment, followed by two years of supervised release, no fine,
restitution was ordered in the amount of $45,987.18, and a $100 special assessment was imposed.
(Case No. 6:22-cr-60032-SOH-MEF-1, ECF No. 16). The sentences in each case were ordered to
run concurrently.
Defendant’s pending § 2255 Motion lists both case numbers, but it was only docketed in
Case No. 6:22-cr-60003-SOH-MEF-1. Upon initial review of the § 2255 Motion, the Court noted
the following deficiencies: it listed the length of sentence (188 months imprisonment) for the drug
trafficking conviction in Case No. 6:22-cr-60003-SOH-MEF-1, but it referred to the false
statement offense in Case No. 6:22-cr-60032-SOH-MEF-1 as the conviction being challenged, and
the asserted grounds for relief concern only the Court’s restitution order imposed in the false
statement case. No grounds for relief were stated in connection with the conviction and sentence
imposed in the drug trafficking case. Thus, it appeared from Defendant’s pending § 2255 Motion
that he only sought relief from the restitution ordered in the false statement case, Case No. 6:22-
cr-60032-SOH-MEF-1.
The Court’s Order of August 14, 2024, sought clarification regarding whether Defendant
intended to assert any claims for habeas relief in his drug trafficking case, Case No. 6:22-cr-60003-
SOH-MEF-1, and if so, Defendant was ordered to file an Amended Motion Under § 2255 no later
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than September 16, 2024. While Defendant has filed an Amended Motion Under § 2255 in his
false statement case (Case No. 6:22-cr-60032-SOH-MEF-1, ECF No. 23), he has not done so in
this case.
The Court’s Order also informed Defendant that failure to comply with the Court’s Order
may result in his pending § 2255 Motion (ECF No. 42) being summarily dismissed. Defendant
has not complied with the Court’s Order to file an Amended Motion Under § 2255 in this case,
and his pending § 2255 Motion is silent as to any ground for relief in this drug trafficking case.
Although pro se pleadings are to be construed liberally, a pro se litigant is not excused
from complying with substantive and procedural law. Burgs v. Sissel, 745 F.2d 526, 528 (8th Cir.
1984). Local Rule 5.5(c)(2) states in pertinent part:
It is the duty of any party not represented by counsel to promptly notify the Clerk
and the other parties to the proceedings of any change in his or her address, to
monitor the progress of the case, and to prosecute or defend the action diligently
. . .. If any communication from the Court to a pro se plaintiff is not responded
to within thirty (30) days, the case may be dismissed without prejudice. 	Any
party proceeding pro se shall be expected to be familiar with and follow the
Federal Rules of Civil Procedure.
Local Rule 5.5(c)(2).
Additionally, the Federal Rules of Civil Procedure specifically contemplate dismissal of a
case on the grounds that a party failed to prosecute or failed to comply with orders of the court.
Fed. R. Civ. P. 41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 630–31 (1962) (stating the district
court possesses the power to dismiss sua sponte under Rule 41(b)). 	Pursuant to Rule 41(b), a
district court has the power to dismiss an action based on “the plaintiff’s failure to comply with
any court order.” 	Brown v. Frey, 806 F.2d 801, 803–04 (8th Cir. 1986) (emphasis added).
Defendant has failed to file an Amended Motion Under § 2255 in this case as ordered by
the Court. 	Likely, that is because the relief he seeks is from the sentence imposed in his false
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statement case and not this drug trafficking case. 	Pursuant to Federal Rule of Civil Procedure
41(b) and Local Rule 5.5(c)(2), the Defendant’s pending § 2255 Motion (ECF No. 42) in this case
should be dismissed without prejudice.
CONCLUSION
For the reasons discussed above, it is RECOMMENDED that Defendant’s Motion Under
28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (ECF
No. 42), filed in this case on August 9, 2024, be DISMISSED without PREJUDICE.
Defendant’s various motions for sentence reduction in this case (ECF Nos. 39, 40, 49, and
52) remain pending for further review and disposition.
The parties have fourteen (14) days from receipt of this Report and Recommendation
in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
written objections may result in waiver of the right to appeal questions of fact. The parties
are reminded that objections must be both timely and specific to trigger de novo review by
the district court.
DATED this 5th day of February 2025.
/s/	
Mark E. Ford
HONORABLE MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
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