United States District Court, D. Kansas
CARRIE M. NEIGHBORS, Petitioner/Defendant,
UNITED STATES OF AMERICA, Respondent/Plaintiff. No. 13-2239-CM
MEMORANDUM AND ORDER
CARLOS MURGUIA, District Judge.
This case is before the court on petitioner Carrie M. Neighbors's Motion for Reconsideration Pursuant to Rule 60(b) (Doc. 666). Petitioner asks the court to reconsider its decision denying petitioner's motion for habeas relief under 28 U.S.C. § 2255. Specifically, in multiple filings supporting her motion, she alleges several points of error: (1) the court misapprehended controlling law on whether the government had to prove "profits" for the money laundering counts; (2) the court erroneously failed to dismiss the case for a Speedy Trial Act violation; and (3) petitioner's former attorney fraudulently filed a memorandum in support of petitioner's § 2255 motion that omitted agreed-upon grounds and arguments. Petitioner initially included another point of error regarding the court's holding that she abandoned certain claims. (Doc. 666 at 1-2.) But she now acknowledges that her Memorandum of Law on file did not, in fact, include the points and arguments that she thought the court overlooked. (Doc. 668 at 2.)
I. Standard of Review
If a habeas petitioner files a Rule 60(b) motion, the court must first examine whether the motion is a true motion for relief from judgment. Spitznas v. Boone, 464 F.3d 1213, 1216 (10th Cir. 2006). The motion may actually be a second or successive habeas petition. The question is whether the motion: (1) "in substance or effect asserts or reasserts a federal basis for relief from the petitioner's underlying conviction"; (2) challenges one of the court's procedural rulings that precluded resolution of the habeas petition on its merits; or (3) 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." Id. at 1215-16. Motions falling under the first category should be treated as second or successive petitions. Motions falling under the second or third category are treated as any other Rule 60(b) motion.
If the court finds that petitioner's motion is actually a second or successive petition, then the court treats the document accordingly, referring the matter to the Tenth Circuit for authorization if "it is in the interest of justice to do so." Id. at 1217; In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008). If the motion is "mixed, " the court will also take mixed action: treating the Rule 60(b) portions as such, and forwarding the remainder to the Tenth Circuit for authorization if appropriate. Id.
A. Proof of Profits
Petitioner's first contention reargues a point already addressed in her initial § 2255 motion. There, she claimed that counsel was ineffective when he failed to argue that the court should have considered net profits instead of gross profits. (Docs. 610-1 at 13; 623 at 5-6.) The court rejected that argument. (Doc. 654 at 5.) If the court were to consider the argument again now, the challenge would lead "inextricably to a merits-based attack on the disposition of her prior habeas petition." Spitznas, 464 F.3d at 1216. Petitioner is not merely challenging a procedural ruling or a defect in the integrity of the proceeding. Instead, she asks the court to review its denial of her habeas request on this issue. For these reasons, the court determines this portion of petitioner's motion is properly construed as a second or successive request for habeas relief.
Under § 2255, federal prisoners seeking to file a second or successive motion must first obtain authorization from the court of appeals before the district court can consider the motion. In re Cline, 531 F.3d at 1250. When a second unauthorized § 2255 motion is filed, the court has discretion in determining whether to transfer the action to the circuit court or dismiss the action without prejudice. See id. at 1251; see also 28 U.S.C. § 1631.
The Tenth Circuit has provided guidance on determining when a transfer would be in the interest of justice. In re Cline, 531 F.3d at 1251. "A transfer is not in the interest of justice when the claims raised in the successive petition clearly do not meet the requirements set forth in 28 U.S.C. § 2255(h)." United States v. Lara-Jiminez, 377 F.Appx. 820, 822 (10th Cir. 2010) (citing In re Cline, 531 F.3d at 1252). Section 2255(h) identifies two situations in which a second or successive motion is certifiable: (1) certain newly discovered evidence exists; or (2) certain new rules of constitutional law have been announced. Petitioner does not argue that either of these situations exists, and the court finds no indication that petitioner's claim has merit; it is merely a rehashing of an argument previously rejected by the court. The court therefore finds that it is not in the interest of justice to transfer the case on this issue.
B. Speedy Trial Act
In her § 2255 motion, petitioner claimed that a Speedy Trial Act violation occurred. The court held that the argument was procedurally barred because petitioner did not raise it on appeal. Petitioner now reiterates that her appellate counsel was ineffective for not raising it on appeal, and she contends that her counsel's ineffectiveness permits the court to consider the argument now. But petitioner also made this argument previously, (Docs. 610 at 8; 623 at 7), and the court held that her statements were conclusory, (Doc. 654 at 6). Like petitioner's first claim of error, this argument is not proper for a Rule 60(b) motion. The court must construe this as an attempted second or successive habeas request.
Petitioner also argues that the procedural default rule should not apply because the government committed fraud during the appeal. (Doc. 685 at 4-5.) Specifically, petitioner claims that the direct appeal is a "nullity" because the government submitted false evidence in its appellate response brief. This argument is new and "in substance or effect asserts... a federal basis for relief from the petitioner's underlying conviction." Spitznas, 464 F.3d at 1215 (citation omitted). This is also an ...