The opinion of the court was delivered by: Julie A. Robinson United States District Judge
This matter is presently before the court upon defendant's pro se "First [Petition] And/Or Reconsideration Post-conviction DENIAL-Pursuant to 28 U.S.C. § 2255." Having carefully reviewed the defendant's motion, the court is now prepared to rule.
Following a jury trial, the defendant was convicted of conspiracy to distribute controlled substances in violation of 21 U.S.C. § 846 [Count 1]; managing or controlling a building for the purpose of using, storing or distributing a controlled substance in violation of 21 U.S.C. § 856 [Counts 3, 4, 5, 13, 20, 22 and 24]; distributing cocaine base in violation of 21 U.S.C. § 841(a)(1) [Counts 12, 15, 17, 18, 19 and 21]; distributing methamphetamine in violation of 21 U.S.C. § 841(a)(1) [Count 23]; and using a communication facility to facilitate conspiracy to distribute controlled substances and distribution of controlled substances in violation of 21 U.S.C. § 843(b) [Counts 14 and 16].
The court sentenced the defendant on June 28, 2007, and issued an order memorializing the court's decisions on July 2, 2007. United States v. Smith, 2007 WL 1893929 (D.Kan. 2007). The court sentenced the defendant to a term of 324 months on Counts 1, 12, 15,17, 18, 19, 21 and 23. The court sentenced the defendant to a term of 240 months on Counts 3, 4, 5, 13, 20, 22 and 24. Finally, the court sentenced the defendant to a term of 48 months on Counts 14 and 16. The court ordered all counts to be served concurrently. The defendant appealed her conviction and sentence. The Tenth Circuit affirmed on July 23, 2008. United States v. Smith, 534 F.3d 1211 (10th Cir. 2008). The Supreme Court denied certiorari on December 1, 2008. Smith v. United States, 555 U.S. 1058 (2008).
The defendant, proceeding pro se, filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 on September 8, 2009. The court denied this motion on April 20, 2010. The Tenth Circuit denied a certificate of appealability on her appeal of this court's § 2255 decision on March 28, 2011. United States v. Smith, 417 Fed.Appx. 739 (2011). On June 1, 2010, the court reduced the defendant's sentence pursuant to 18 U.S.C. § 3582(c)(2). The court reduced defendant's sentence on Counts 1, 12, 15, 17, 18, 19, 21 and 23 from 324 months to 262 months.
The nature of the instant motion is not entirely clear. The defendant has entitled it as a "first" petition for relief under § 2255. She has also labeled it as a motion seeking reconsideration of "post-conviction denial." Thus, the relief sought is oxymoronic in nature. On the one hand, she contends that she is filing her first petition for relief under § 2255, while at the same time she is asking for reconsideration of a prior § 2255 motion.
The defendant initially requests that the court reconsider its decision at sentencing that her criminal history score was improperly increased based upon a 1983 conviction for criminal possession of a firearm. She had contended that this conviction should not have been considered by the court because it was not within the fifteen-year period of U.S.S.G. § 4A1.2(e)(1). The court rejected that argument at sentencing, finding that the circumstances showed that the defendant's prior conviction had been completed within the fifteen year period of the commencement of some of the offenses of which she convicted. The defendant did not appeal this issue to the Tenth Circuit. She did, however, contend that her counsel was ineffective for failing to raise it on appeal in her § 2255 motion filed on September 8, 2009.
The defendant next argues that the court erred in failing to make factual findings to support the decision to enhance her sentence based on obstruction of justice under U.S.S.G. § 3C1.1. At sentencing, the defendant argued that the court should not apply the enhancement under § 3C1.1. The court rejected that argument after reviewing the facts applicable to that enhancement. The defendant contended on appeal that the court erred in enhancing her sentence based upon obstruction of justice. The Tenth Circuit rejected that contention. In her § 2255 petition, the defendant claimed that her counsel was ineffective because he failed to raise another version of her argument concerning the obstruction of justice enhancement.
The court must initially consider if the motion filed is a second or successive § 2255 motion or a motion seeking relief under Fed.R.Civ.P. 60(b).
Federal Rule of Civil Procedure 60(b) provides that "[o]n motion and just terms, the court may relieve a party or its legal representative from a final judgment, ...