United States District Court, D. Kansas
MEMORANDUM AND ORDER
CARLOS MURGUIA, District Judge.
Presently before the court are fourteen separate documents filed by defendant (Docs. 120-21, 123-134.) These filings are largely incoherent and difficult to follow. The court has reviewed each of the documents and has done its best to ascertain the nature of each document and determine whether defendant has requested any relief. Each document or group of documents is discussed in turn. For the reasons stated below, all of the filings-to the extent necessary-are denied.
This document is titled "Declaration' In the Nature of Judicial Notice; In the Nature of Motion to Strike Order Document #118, Stated by District Judge Carlos Murguia." (Doc. 120 at 1.) Based on defendant's arguments, the court construes this document as a motion to strike and a motion to alter or amend judgment.
First, defendant argues that the court's order (Doc. 118) denying his previous motion (Doc. 117) denied him a meaningful judicial review and should be stricken. He claims that the court's citation of a case dealing with nearly identical issues revealed that the court was in "a hurry to deny [defendant]'s challenge." ( Id. at 2.) Defendant states no valid basis for relief, nor has he shown any authority in support of his request to strike the court's order. See Fed.R.Civ.P. 12(f) (noting that a court may strike material from a pleading ); Searcy v. Social Sec. Admin., No. 91-4181, 956 F.2d 278 (Table), 1992 WL 43490, at *3 (10th Cir. Mar. 2, 1992) (looking to Fed.R.Civ.P. 7(a) for what qualifies as a "pleading" and noting that a "motion to strike is not appropriate with regard to... any other matter other than that contained in the actual pleadings") (quotation omitted).
Defendant also argues that he has a right to object to a report and recommendation and that he did not consent to a magistrate judge in this case. But a review of the docket sheet in this case indicates that no report and recommendation has been issued. Therefore, defendant has not been denied any opportunity to object to a report and recommendation. Defendant did appear in front of several magistrates throughout the course of this case. (Docs. 6 (initial appearance); 15-16 (detention hearing and order setting conditions of release); 22 (arraignment/discovery hearing); 23 (general order of discovery and scheduling); 24 (consent and order modifying conditions of release).)
But none of the magistrate proceedings that took place required defendant's consent. 28 U.S.C. § 636(a)(1) (stating that magistrate judges have all powers and duties conferred or imposed upon United States commissioners by law or by the Federal Rules of Criminal Procedure); Local Rule 72.1.1(a) (stating same and also providing authority to order release or detention of arrested persons pending judicial proceedings); Local Rule 72.1.2(a)(2) (stating that "all felony cases will be assigned to a magistrate judge for proceedings pursuant to Fed. R. Crim. P. 5, the conduct of an arraignment... and for the hearing and determination of all pretrial procedural and discovery motions); Fed. R. Crim. P. 5 (providing for an initial appearance before a magistrate judge); Gonzalez v. United States, 553 U.S. 242, 245 (2008) (noting that magistrate judges may "issue orders concerning release or detention of persons pending trial" and "hear and determine, when designated to do so, any pretrial matter pending before the district court, with the exception of certain specified motions").
And defendant again argues that he is entitled to relief under a "writ of coram nobis" for fraud and misrepresentation. But this extraordinary remedy is not available to defendant, as he is currently in custody. See United States v. Torres, 282 F.3d 1241, 1245-47 (10th Cir. 2002) ("[A] prisoner may not challenge a sentence or conviction for which he is currently in custody through a writ of coram nobis."). And defendant has not met any of the other requirements for relief under a writ of coarm nobis. See United States v. Thody, 460 F.Appx. 776, 778-79 (10th Cir. 2012).
Finally, defendant argues that the court has inherent power to reconsider its own order and attempts to invoke Federal Rule of Civil Procedure 59. But defendant does not allege any intervening change in controlling law, cite new evidence, or show any need to correct clear error or prevent manifest injustice. Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (stating requirements for relief under Federal Rule of Civil Procedure 59(e)).
For these reasons, and to the extent necessary, the court denies this motion (Doc. 120).
This document is titled "In the Nature of Judicial and Administrative Notice and Demand to Dismiss for Lack of Any Criminal Jurisdiction Whatsoever: 28 U.S.C. 1359; FRCP Rules 9(b), 12(b)(1), 12(b)(2), 12(h)(3)." (Doc. 121 at 1.) The court liberally construes this document as a motion to dismiss the indictment for lack of jurisdiction under Federal Rule of Criminal Procedure 12(b)(3)(B). Under Rule 12(b)(3)(B), a motion alleging a defect in the indictment for lack of jurisdiction can be made "at any time while the case is pending."
The Tenth Circuit dismissed defendant's appeal on June 15, 2009 (Doc. 112). The time to file a petition for a writ of certiorari to the Supreme Court has passed. Sup.Ct. R. 13. Defendant's case is no longer pending; thus, his motion is untimely. United States v. Jones, 510 F.Appx. 772, 774 (10th Cir. 2013) (affirming district court's decision that similar motion was untimely for same reasons); United States v. Sorensen, 276 F.Appx. 758, 760 (10th Cir. 2008) (same). And defendant has not asserted any good cause to excuse his waiver. See id; Fed. R. Crim. P. 12(e).
Even if his motion was timely, it would be denied. Defendant was convicted of conspiracy to distribute and possession with intent to distribute more than 5 kilograms of cocaine and more than 50 grams of cocaine base (count 1) and attempted possession with the intent to distribute 5 kilograms or more of a mixture or substance containing cocaine (count 2). (Doc. 97 at 2 (stating counts of conviction for violations under 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii)(II), (b)(1)(A)(iii), 846 and 18 U.S.C. §2).) Under 18 U.S.C. § 3231, "[t]he district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States." Defendant's claims that the court lacks jurisdiction over him are baseless. See United States v. Owens, No. 98-6081, 156 F.3d ...