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United States v. Graham

United States District Court, Tenth Circuit

June 12, 2013

UNITED STATES OF AMERICA, Respondent/Plaintiff,
ANDRE GRAHAM, Movant/Defendant. No. 10-4022-JAR.


JULIE A. ROBINSON, District Judge.

This matter is before the Court on Movant Andre Graham's Rule 60(b)(6) Motion for Relief from a Judgment or Order (Doc. 121), filed December 10, 2012, and Movant's Motion to Amend (Doc. 122), filed January 17, 2013. The Government has responded to Movant's motion for relief (Doc. 128). Movant filed a reply (Doc. 129) and a Motion for Joinder (Doc. 124) seeking to supplement his Motion to Amend. Movant has also filed a Motion for Abeyance (127), asking the Court to consider his Rule 60(b)(6) motion before addressing his Motion to Amend. After a careful review of the record and the arguments presented, the Court grants Movant's joinder and abeyance motions, but construes Movant's Rule 60(b)(6) motion and Motion to Amend as second or successive § 2255 petitions and dismisses them for lack of jurisdiction.

I. Background

On June 2, 2008, Movant pled guilty to violating 21 U.S.C. § 841(a)(1), possession with intent to distribute cocaine hydrochloride, and 18 U.S.C. § 924(c)(1)(A), possession of a firearm during and in relation to a drug trafficking crime.[1] In accepting his plea to these counts, this Court engaged Movant in a lengthy plea colloquy, ultimately concluding that he was mentally competent to enter his plea.[2]

On February 17, 2009, Movant filed a motion to withdraw his plea, claiming his counsel "misinformed him as to the possible sentence for his plea."[3] The Court conducted an evidentiary hearing on March 2, 2009.[4] At no point during the hearing did Movant claim he was mentally incompetent to enter a plea. The Court denied Movant's motion in a March 31, 2009, Memorandum and Order.[5] On May 4, 2009, this Court sentenced Movant to 144 months' custody.[6] Movant appealed this judgment to the United States Court of Appeals for the Tenth Circuit, but later voluntarily dismissed that appeal.

On February 26, 2010, Movant filed a 28 U.S.C. § 2255 petition seeking to set aside his conviction.[7] He claimed his counsel ineffectively (1) failed to object to inclusion of a 1987 conviction in his criminal history score; (2) failed to object to paragraph 48 of the PSR; (3) advised him that he would only face a sentence of 77 months; and (4) failed to move this Court for a psychiatric examination based upon his mental disabilities, which he asserted had precluded him from understanding the nature and consequences of the proceedings against him.[8] This Court denied Movant's § 2255 Petition on January 31, 2011.[9] Movant sought a Certificate of Appealability from the Tenth Circuit, which denied his request.[10] Movant sought a writ of certiorari from the Supreme Court, which denied his request.[11]

II. Analysis

Movant's Rule 60(b)(6) motion challenges this Court's ruling denying his initial § 2255 petition. Rule 60(b)(6) gives this Court discretion to "relieve a party or its legal representative from a final judgment, order, or proceeding for... any other reason that justifies relief." But before addressing the Motion for Relief, this Court must determine whether the motion is a "true" Rule 60(b)(6) motion or actually a second or successive § 2255 petition, which would require prior authorization from the Tenth Circuit, under 28 U.S.C. § 2255(h). Although the Government suggests that this motion is a true Rule 60(b)(6) motion, the Court must conduct its own independent analysis. In the Tenth Circuit,

a 60(b) motion is a second or successive petition if it in substance or effect asserts or reasserts a federal basis for relief from the petitioner's underlying conviction. Conversely, it is a "true" 60(b) motion if it either (1) challenges only a procedural ruling of the habeas court which precluded a merits determination of the habeas application; or (2) challenges a defect in the integrity of the federal habeas proceeding, provided that such a challenge does not itself lead inextricably to a merits-based attack on the disposition of a prior habeas petition.[12]

The Supreme Court addressed a similar issue in Gonzalez v. Crosby, [13] and the Tenth Circuit has held that the reasoning in that case also applies to motions filed after denial of a § 2255 application.[14] In Gonzalez, the Supreme Court noted that a motion filed after a denial of a habeas claim should be treated as a second or successive petition "if it attacks the federal court's previous resolution of a claim on the merits, since alleging that the court erred in denying habeas relief on the merits is effectively indistinguishable from alleging that the movant is, under the substantive provisions of the statutes, entitled to habeas relief."[15] The Court clarified that "on the merits" means

a determination that there exist or do not exist grounds entitling a petitioner to habeas corpus relief.... When a movant asserts one of those grounds (or asserts that a previous ruling regarding one of those grounds was in error) he is making a habeas corpus claim. He is not doing so when he merely asserts that a previous ruling which precluded a merits determination was in error.[16]

In sum, then, when a movant seeks Rule 60(b)(6) relief asserting that a court addressed his prior claim but did so incorrectly, he is actually making a second or successive habeas application, and the filing must be treated accordingly.

In this case, Movant makes four claims, Arguments A, B, C, and D. In Argument A, he claims that "the district court did not include the examination of his Veterans Administration Hospital Mental Health Records (Doc. No. 39, Exh. A) when making its decision to deny his § 2255 motion."[17] Arguments B and D are derivative of this initial argument, and Argument C asserts that his Rule 60(b)(6) motion is not barred by the waiver provision in the Plea Agreement because "this issue concerns the knowing and voluntary' aspect of the trial proceedings" and thus falls outside the scope of the waiver. Substantively, then, this motion turns on the Court's resolution of Movant's Argument A.

In Argument A, Movant asserts that the Court's alleged failure to consider the records amounts to "a procedural default which caused the Court to violate defendant's substantial right whereas defendant was not afforded Due Process as outlined in the Fifth Amendment of the United States Constitution."[18] Similarly, in Argument D, Movant asserts that the Court's alleged failure "to thoroughly examine and consider all evidence when a defendant presents allegations of a violation of his Constitutional Rights [is] a defect in the integrity of the federal habeas proceedings."[19] But, in spite of Movant's use of language that suggests this is a true Rule 60(b)(6) motion, Movant is simply challenging the Court's resolution of his earlier claim. Movant does not argue that the Court failed to consider his argument entirely, but rather that the Court ignored some evidence supporting his argument. This amounts to a merits-based attack on the ...

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