USA v. Godfrey

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
SYLVAN L. GODFREY,
Plaintiff,
vs.
UNITED STATES OF AMERICA,
Defendant.
3:20-CV-03017-RAL
3:13-CR-30118-RAL
ORDER DENYING MOTIONS TO RECALL
THE MANDATE
Petitioner Sylvan Godfrey filed two motions to recall the mandate in his criminal file and
in his successive habeas appeal civil file. As motions to recall the mandate are applicable to
appellate proceedings, not those considered at the district court level, Godfrey's motions to recall
the mandates are denied. To the extent the motions are successive habeas petitions under 28 U.S.C.
§ 2255, this Court dismisses them for failure to acquire a certificate ofappealability.
I. Background
Godfrey was convicted of aggravated sexual abuse of a child after a jury trial. See United
States v. Godfrey, 3:13-CR-3 Oil 8-01-RAL at Doc. 67, On August 11,2014, this Court sentenced
Godfrey to 360 months in federal custody. United States v. Godfrey, 3:13-CR-30118-01-RAL at
Doc. 78. The United States Court of Appeals for the Eighth Circuit affirmed his conviction and
sentence on May 4, 2015. See United States v. Godfrey, 3:13-CR-30118-01-RAL at Docs. 98,
99,101,102.
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On July 5, 2016, Godfrey filed his first motion seeking to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255. See Godfrey v. United States, 3:16-CV-03030-RAL at Doc. 1.
This Court dismissed Godfrey's first petition on September 2, 2016. Godfrey v. United States,
3:16-CV-03030-RAL at Docs. 10, 11. Godfrey filed a notice of appeal to the Eighth Circuit.
Godfrey v. United States, 3:16-CV-03030-RAL at Docs. 14, 15. Thereafter, Godfrey sought to
obtain a certificate of appealability, which this Court denied. Godfrey v. United States, 3: 16-CV-
03030-RAL at Docs. 20, 21. The Eighth Circuit also denied a certificate of appealability and
issued a mandate and, thereafter, dismissed Godfrey's appeal on June 1, 2017. See Godfrey v.
United States, 3:16-CV-03030-RAL at Docs. 27, 28. Godfrey next filed a second § 2255 motion
directly with the Eighth Circuit in May 2020. See Godfrey v. United States, 3:20-CV-03017-
RAL at Doc. 8 at 2. The Eighth Circuit denied relief and issued a mandate in August 2020. See
Godfrey v. United States, 3:20-CV-03017-RAL at Doc. 8 at 2.
On September 28, 2020, Godfrey filed another petition under 28 U.S.C. § 2255 with this
Court raising claims that his trial counsel was deficient, his case should have been presented
before the tribal court, and exculpatoiy witnesses were improperly excluded from trial. Godfrey
v. United States, 3:20-CV-03017-RAL at Doc. 1. This Court granted the government's motion
to dismiss because Godfrey did not obtain authorization for a second or successive habeas motion
from the court of appeals. Godfrey v. United States, 3:20-CV-03017-RAL at Docs. 12, 13.
Godfrey has now filed two new motions, both to recall the mandate. On January 25, 2022,
in United States v. Godfrey, 3:13-CR-30118-RAL, Godfrey moved. Doc. 118, to recall the
mandate, Docs. 101, 102, in which the Eighth Circuit affirmed denial of a rehearing en banc
regarding Godfrey's conviction in his criminal file. He attached an exhibit with cases he claims
support his argument he was given an unlawful sentence enhancement and requests an attorney
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to assist him with his filing. He claims documents supporting this motion were destroyed in a
hurricane and requests this Court direct the U.S. Armed Forces reserve complexes to secure any
remaining records.
On February 1, 2022, in Godfrey v. United States, 3:20-CV-03017-RAL at Doc. 16,
Godfrey moved to recall the mandate—though what mandate is unclear. In his first ground for
relief, Godfrey contended he was given an unlawful enhancement under the Armed Career
Criminal Act (ACCA) because his enhancement could not be used as the predicate violent offense
under the ACCA. In ground two, he requested an attorney to assist him with his filing. He also
attached an exhibit stating he was denied effective assistance of counsel.
On February 28, 2022, in both of Godfrey's habeas civil files, see Godfrey v. United
States, 3:16-CV-03030-RAL; Godfrey v. United States, 3:20-CV-03017-RAL, the Court of
Appeals entered a judgment and mandate denying Godfrey approval to file any additional habeas
actions.
For the reasons set forth below, this Court dismisses Godfrey's motions to recall the
mandate as improvidently filed in the district court and to the extent they attempt to start
successive habeas petitions under 28 U.S.C. § 2255, denies them as Godfrey has failed to secure
authorization to file another motion under the statute. Godfrey's motions for appointment of
counsel are denied.
II. Discussion
In the Eighth Circuit, a mandate may be recalled only "to prevent injustice." Walker v.
Lockhart, 726 F.2d 1238, 1267 (8th Cir. 1984) (en banc). "The mandate is the command of the
appellate court to the court below to execute the appellate judgment." Steven D. McLamb, Federal
Appellate Procedure - Recall of Mandate - Review of Judgments after Rehearing and Appeal
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Periods Expire, 24 Vill. L. Rev. 157, 159 (1978). A motion to recall a mandate is used at the
appellate level when a litigant attempts to return to the court that issued a judgment when he or
she has exhausted all other avenues for appeal to pray that the court reconsider its prior mandate.
See David G. Seykora, Recall of Appellate Mandates in Federal Civil Litigation, 64 Cornell Law
Review 5, 704 (April 1979). At the district court level, motions to amend or alter a judgment are
guided by Rule 59(e) of the Federal Rules of Civil Procedure while Rule 60(b) governs relief
from a judgment. Fed. Rules Civ. Pro. Rules 59(e), 60(b)(2). At the appellate level, the individual
circuits have developed their own rules to reconsideration of a mandate while Rule 40 of the
Federal Rules of Appellate Procedure explains the procedure to petition for a panel rehearing and
Rule 41 explains the mandate. See Seykora, Recall of Appellate Mandates in Federal Civil
Litigation, 64 Cornell Law Review 5 at 706; Fed. Rules App. Pro. Rules 40, 41.
A motion to recall the mandate is considered a motion of "last resort," Thompson v.
Nixon, 272 F.3d 1098, 1099-100 (8th Cir. 2001) which is "rarely exercised" and only used as an
"extraordinary remedy" for "extreme and necessitous cases," Ruiz v. Norris, 104 F.3d 163, 164
(8th Cir. 1997); see also 5 C.J.S. Appeal and Error § 1195 (limiting motions to recall the mandate
to "extraordinary circumstances"). Thus, it is no surprise "[t]he standard for recalling a mandate
in habeas corpus litigation is a strict one." Thompson, 272 F.3d at 1099-100 (8th Cir. 2001). The
Eighth Circuit has stated
When the decision in question is ... a denial of a petition for habeas corpus, a
motion to recall the mandate to allow consideration of a new ground or contention
is the functional equivalent of a second or successive petition for habeas corpus.
Such a motion can be granted, and the new ground or contention decided on the
merits, only if the case meets the exacting standards for second or successive
petitions.
Ruiz, 104 F.3d at 164. A motion to recall the mandate "cannot be used to allege ineffectiveness
of trial counsel." Hall v. Luebbers, 296 F.3d 685, 697 n.6 (8th Cir. 2002). And they cannot be
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utilized as a "vehicle by which a movant can raise any and all errors in appellate proceedings."
Jolly v. Gammon, 28 F.3d 51, 53 (8th Cir. 1994).
This Court, as a United States district court, cannot recall a mandate issued by the United
States Court of Appeals for the Eighth Circuit. See Ruiz, 104 F.3d at 164 (the Eighth Circuit has
stated that it has the "power to recall our mandate and reconsider a decision to prevent injustice")
(emphasis added); see also S. S. Kresge Co. v. Winget Kickernick Co., 102 F.2d 740, 742 (8th
Cir. 1939) (Eighth Circuit stating "we do not doubt the power of this Court to construe its
mandates whenever it deems it advisable so to do"). Thus, this Court declines to rule on Godfrey's
motions to recall the mandate and dismisses them as improvidently filed in the district court. To
the extent Godfrey's filings are successive motions seeking to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255, this Court denies Godfrey's motions as authorization to file
additional habeas petitions has been denied multiple times. See Godfrey v. United States, 3:16-
CV-03030-RAL at Doc. 27; Godfrey v. United States, 3:20-cv-03017-RAL at Doc. 12. Godfrey's
requests for appointment of counsel are denied as moot. Therefore, it is
ORDERED that Godfrey's motion to recall mandate to the extent it is seeking to have the
Court consider a successive habeas petition and request for appointment of counsel. Doc. 16, in
Godfrey v. United States, 3:20-CV-03017-RAL, are denied. It is further
ORDERED that Godfrey's motion to recall mandate to the extent it is seeking to have the
Court consider a successive habeas petition and request for appointment of counsel. Doc. 118, in
United States v. Godfrey, 3:13-CR-30118, are denied.
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DATED this ftfth day of June, 2022.
BY THE COURT:
Q^ROBERTO A. LANGl
CHIEF JUDGE
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