United States District Court, D. Kansas
MEMORANDUM AND ORDER
ERIC F. MELGREN, District Judge.
This matter comes before the Court on Defendant Heriberto Miranda-Roldan's ("Defendant") pro se Motion to Re-Open a Denied Title 28 U.S.C. § 2255 petition pursuant to Federal Rule of Civil Procedure 60(b). For the reasons stated below, Defendant's motion is denied.
I. Factual and Procedural Background
On May 25, 2010, Defendant was charged, along with eighteen others, in a 116-count second superseding indictment. On February 16, 2011, in exchange for a dismissal of a large number of these counts, Defendant pled guilty, under a Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement, to two counts of unlawful use of a communications device. As a result of this plea, Defendant received the maximum sentence of forty-eight (48) months for each count, to be served consecutively, for a total sentence of ninety-six (96) months. On April 1, 2011, Defendant filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, alleging ineffective assistance of counsel and an illegal sentence. Defendant's motion was denied on June 7, 2011. On July 13, 2011, Defendant filed a motion to rescind this ruling, alleging that, due to jail transportation and relocation issues, he failed to receive a copy of the Government's response to his § 2255 application. This Court granted Defendant's motion to rescind on July 15, 2011. Defendant filed his reply to the Government's response to his § 2255 application on September 19, 2011. This Court again denied Defendant's § 2255 application on November 9, 2012.
On August 1, 2013, Defendant filed a Rule 60(b) motion to re-open his denied § 2255 application. In his motion, Defendant requests a downward modification of his ninety-six-month sentence based on the grounds set forth in his § 2255 application, namely, ineffective assistance of counsel and an illegal sentence. On March 28, 2014, Defendant filed an addendum to his Rule 60(b) motion, requesting a two-level sentence reduction pursuant to 18 U.S.C. § 3582(c)(2).
Before analyzing the substance of Defendant's motion, this Court must first consider if the motion is a true Rule 60(b) motion or merely a second or successive § 2255 petition. Rule 60(b) provides that "[o]n motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Congress, in passing the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), placed various restrictions on habeas petitions. Second or successive habeas petitions may proceed "only in specified circumstances and only with a circuit court's prior authorization." In Gonzales v. Crosby ,  the Supreme Court provided guidance as to the relationship between Rule 60(b) and second or successive motions filed ...