United States District Court, D. Kansas
MEMORANDUM AND ORDER
RICHARD D. ROGERS, District Judge.
This pro se civil complaint was filed by Mr. DeWilliams while he was an inmate at the United States Penitentiary, Leavenworth, Kansas (USPL). The court has examined the over 110 pages of pleadings and exhibits filed by Mr. DeWilliams and takes judicial notice of his prior related court actions. This is another in a long string of actions filed by Mr. DeWilliams in an attempt to challenge his 1988 federal convictions and sentence. The court dismisses this complaint seeking mandamus relief for failure to state a claim and as frivolous. The court declines to merely construe this action as a successive § 2255 motion due to Mr. DeWilliam's abusive litigation history and his insistence that he seeks something other than habeas corpus relief. In any event, even if this action were construed as another successive and abusive § 2255 motion, it would be dismissed for lack of jurisdiction because this is not the sentencing court and there is no indication that Mr. DeWilliams obtained preauthorization from the Tenth Circuit Court of Appeals prior to filing this action. The court also requires petitioner to satisfy the statutory filing fee prerequisites.
With his complaint, plaintiff sent a letter to the clerk stating he had begun the process for obtaining $5.00 for the filing fee. However, no fee was ever paid and plaintiff has not submitted a motion to proceed without prepayment of fees. The statutory fee for filing a non-habeas civil action is $350.00, 28 U.S.C. § 1914, with an administrative fee of $50.00 added for one who is not granted in forma pauperis (IFP) status. The statutory fee for filing a federal habeas corpus petition is $5.00. Id. A prisoner seeking to proceed without prepayment of fees in a civil action must submit a proper IFP motion upon court-approved forms that contains an affidavit and a statement of the prisoner's assets. 28 U.S.C. § 1915(a)(1). Along with this motion, the inmate must submit a certified copy of the transactions in his institutional account for the six-month period immediately preceding the filing of the action. Mr. DeWilliams has previously been advised of these prerequisites.
The court determines that the appropriate filing fee for this case is that for a civil action and plaintiff is assessed the full fee of $350.00. Mr. DeWilliams has filed prior § 2255 motions and § 2241 petitions that raised the same claims as are presented herein, which were dismissed. See United States v. DeWilliams, 554 Fed.Appx. 752 (10th Cir. 2014)(Mr. DeWilliams "has filed numerous unsuccessful challenges to his 1988 pre-Guidelines sentence.")(citing In re deWilliams, No. 11-1575, at 2-4 (10th Cir. Jan. 26, 2012)(unpublished order)(summarizing filings). He has been informed on numerous occasions by various courts that his exclusive remedy for challenging his federal conviction or sentence is a motion filed in the sentencing court pursuant to 28 U.S.C. § 2255. It is plain that he intentionally filed this matter as a civil complaint for mandamus relief to avoid the statutory restrictions that have caused his prior habeas actions to be readily dismissed. For these reasons and based upon Mr. DeWilliams' litigation history, the court determines that his claims herein are not only successive but abusive habeas claims that he again attempts to disguise as non-habeas claims in this frivolous complaint for mandamus relief against several "Defendants."
Mr. DeWilliams is ordered to submit a proper Motion to Proceed without Prepayment of Fees upon court-approved forms accompanied by the requisite financial information in support. He is provisionally granted leave to proceed without prepayment of fees conditioned upon his submitting his complete and proper Motion within the time prescribed by the court. If he fails to submit a proper motion or fails to qualify to pay the fee through automatic payments, the entire fee will be become due and owing upon expiration of the prescribed time period.
BACKGROUND AND PROCEDURAL HISTORY
Mr. DeWilliams was convicted in the United States District Court for the District of Colorado upon his pleas of guilty to one count of bank robbery and one count of false statement. On August 3, 1988, he was sentenced to twenty-five years in prison. See DeWilliams v. Walsh, 2011 WL 3268610 (D.Colo. July 28, 2011). Three weeks after sentencing, the judge entered a "Clarification of Judgment" stating that Mr. DeWilliams' "sentence had been imposed under the law that pre-existed the United States Sentencing Commission's promulgation of sentencing guidelines" based on that court's finding that the U.S. Sentencing Guidelines were unconstitutional. Id. However, in January 1989, the Supreme Court issued its opinion in Mistretta v. United States, 488 U.S. 361 (1989), holding that the guidelines are constitutional.
In DeWilliams, the sentencing court set forth Mr. DeWilliam's extensive litigation history after his 1988 convictions and sentence:
Mr. DeWilliams appealed directly to the United States Court of Appeals for the Tenth Circuit (Tenth Circuit), claiming that this Court should have allowed him to withdraw his guilty plea pursuant to Rule 32(d) of the Federal Rules of Criminal Procedure, or at least the Court should have granted him an evidentiary hearing to allow him to demonstrate fair and just reasons for a plea withdrawal. In affirming this Court's conviction, the Tenth Circuit found that the district court conducted a proper Fed.R.Crim.P. 11 hearing, and that Mr. DeWilliams failed to present any substantial reasons to warrant either an evidentiary hearing on the motion to withdraw his guilty plea or fair and just reasons to grant such a motion. United States v. DeWilliams, No. 88-2225 (10th Cir. Jan. 23, 1990) (not selected for publication). On June 4, 1990, the United States Supreme Court denied certiorari review.
Approximately fifteen years later, on August 8, 2005, Mr. DeWilliams filed in No. 88-cr-00064-ZLW-1 a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 and a petition for writ of coram nobis seeking to be resentenced under the sentencing guidelines. He based his claim on Mistretta. On August 31, 2005, this Court denied the § 2255 motion as time barred. The Court also denied the coram nobis petition, finding it was simply an attempt to circumvent the time limitation contained in § 2255.
Undeterred, on September 19, 2005, Mr. DeWilliams filed pro se in No. 88-cr-00064-ZLW-1 a motion to correct an illegal or unauthorized sentence pursuant to Fed.R.Crim.P. 35(a), raising the same argument as in the § 2255 motion and coram nobis petition. On October 27, 2005, the Court denied the motion, concluding that Fed.R.Crim.P. 35(a) did not afford an avenue for relief. The Tenth Circuit affirmed. See United States v. DeWilliams, No. 05-1495, 178 Fed.Appx. 819 (10th Cir. May 4, 2006) (unpublished).
On April 28, 2008, Mr. DeWilliams filed in No. 88-cr-00064-ZLW-1 a motion titled "Motion to Amend or Modify Sentence Retroactively Pursuant to [ Mistretta ], " which the Court summarily denied on May 16, 2008, noting it "contains the same arguments previously presented before this Court. [The] requested relief remains time barred under 28 U.S.C. § 2255 and relief continues to be unavailable... under Fed.R.Crim.P. 35(a)." On November 13, 2008, the Tenth Circuit dismissed the appeal, characterizing the motion to amend or modify sentence filed in this Court as a second or successive § 2255 motion, denying Mr. DeWilliams leave to proceed in forma pauperis on appeal, and directing him to pay the filing fee in full. See United States v. DeWilliams, No. 08-1223, 299 Fed.Appx. 801 (10th Cir. Nov. 13, 2008).
In the meantime, on December 3, 2007, Mr. DeWilliams filed a 28 U.S.C. § 2241 habeas corpus application in this Court, which denied the application on September 30, 2009, noting that the application was "thinly veiled, " "brought in title only under 28 U.S.C. § 2241, " and "again [sought] vainly to achieve time-barred relief under 28 U.S.C. § 2255." See DeWilliams v. Davis, No. 07-cv-02513-REB-MJW, slip op. at 2 (D.Colo. Sept. 30, 2009) (unpublished) (ECF No. 68). On March 16, 2010, the Tenth Circuit agreed with the district court's characterization of Mr. DeWilliams § 2241 application, determined the application was really an unauthorized successive motion for relief under § 2255, vacated the district court's ruling denying the § 2241 application, treated Mr. DeWilliams' notice of appeal and appellate brief as an implied application for leave to file a successive § 2255 motion, and denied such leave because Mr. ...