United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA United States District Judge
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).
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.
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.
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.
Defendant's Claim About First Trial Counsel
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.
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.
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.
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.
Defendant's Other Claims
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, ...