United States v. Toombs

          MEMORANDUM AND ORDER

          CARLOS MURGUIA United States District Judge

         This case is before the court on defendant Marlo Toombs's Motion to Alter or Amend Judgement (sic) Pursuant to Rule 59(e) and/or Petition to Make Amended or Additional Filings Pursuant to Rule 52(b); or in Alternative; Motion to Reconsider (Doc. 124).

         I. Legal Standard

         If a habeas petitioner files a Rule 59(e) or Rule 60(b) motion, the court must first examine whether the motion is a true motion to alter or amend judgment or for relief from judgment. United States v. Pedraza, 466 F.3d 932, 933 (10th Cir. 2006) ((discussing Rule 59(e)); Spitnas v. Boone, 464 F.3d 1213, 1216 (10th Cir. 2006) (applying Rule 60(b)). The motion may actually be a second or successive 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.” Spitnas, 464 F.3d at 1215-16. Motions falling under the first category should be treated as second or successive petition. Motions falling under the second or third category are treated as any other Rule 59(e) or 60(b) motion.

         If the court finds that defendant's motion is actually a second or successive petition, then it treats it 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 59(e) or 60(b) portions as such, and forwarding the remainder to the Tenth Circuit for authorization if appropriate. Id.

         II. Discussion

         Defendant argues in his motion that the court erred in its rulings on defendant's § 2255 motion. First, defendant alleges that the court did not address his ineffective assistance of counsel claims against Dan Ross and Ray Sousley, and further that the court erred in its ruling that defendant received relief when the first indictment was dismissed. Second, defendant argues that there was a defect in the habeas proceedings because the court improperly based its analysis on misidentified claims due to defendant's inability to cite case law in his original § 2255 application as well as the court denying defendant the ability to file untimely supplemental materials when the government received four extensions. Third, defendant claims that the court misapprehended his position on his ineffective assistance of counsel claim, which defendant had planned on clarifying and supporting with legal authorities in his reply.

         1. Defendant's Claim About First Trial Counsel

         Defendant's first argument reasserts a basis for relief from defendant's conviction. The challenge would lead “inextricably to a merits-based attack on the disposition of [his] prior habeas petition.” Spitnas, 464 F.3d at 1216. Defendant acknowledges that he received relief when the first indictment was dismissed, but argues that it was not the relief he was entitled to. Defendant is not merely challenging a procedural ruling or a defect in the integrity of the proceeding. Instead, he asks the court to revisit the prejudice prong under Strickland v. Washington, 466 U.S. 668, 687-88 (1984), to determine if defendant is entitled to relief based on his claims of ineffective assistance of counsel against Ross and Sousley. For these reasons, the court determines that this portion of defendant's motion is properly construed as a second or successive petition.

         Under 28 U.S.C. § 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. To obtain authorization, the defendant must demonstrate that the motion is based on a new constitutional rule or on newly discovered evidence. United States v. Lara-Jiminez, 377 F. App'x 820, 822 (10th Cir. 2010); 28 U.S.C. § 2255(h). 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 In re Cline, 531 F.3d 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).” Lara-Jiminez, 377 F. App'x at 822 (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.

         Defendant does not argue that either of these situations exists. The court also finds no indication that defendant's first claim has merit; he is merely rehashing a claim previously rejected by the court. The court therefore finds that it is not in the interest of justice to transfer this claim to the Tenth Circuit. The court dismisses this portion of defendant's motion without prejudice.

         2. Defendant's Other Claims

         With respect to defendant's second and third arguments, he directly responds to some of the court's observations about his petition. Specifically, the court noted that defendant did not readily identify the errors upon which his claims for ineffective assistance of counsel rested or provide legal authority in support of his claims. The court referred to the government's identification of defendant's claims, ...