United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA United States District Judge.
case is before the court on defendant Dale Hill's motion
to alter or amend judgment pursuant to Fed.R.Civ.P. 59(e)
habeas petitioner files a Rule 59(e) 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). 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”; or (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 v. Boone, 464 F.3d 1213, 1215-16 (10th Cir.
2006) (applying Rule 60(b)). 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 59(e) 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) portions as such, and forwarding the remainder to the
Tenth Circuit for authorization if appropriate. Id.
argues that the court erred in denying his § 2255 motion
for several reasons. First, he argues that United States
v. Frazier-LeFear, 665 F. App'x 727, 731-32 (10th
Cir. 2016), is unpublished and not precedential. Defendant
claims that he cannot waive his right to appeal a sentence
that resulted in a miscarriage of justice or unlawful
sentence. He further notes that the United States Supreme
Court has granted certiorari in Class v. United
States, No. 16-424, on whether a guilty plea inherently
waives a defendant's right to challenge the
constitutionality of his statute of conviction.
court recognizes that the ramifications of Johnson v.
United States, 135 S.Ct. 2551 (2015), have not been
fully determined at this juncture. However, the court is
required to follow Tenth Circuit precedent, which has
consistently rejected arguments similar to defendant's
position. See United States v. Smith, 500 F.3d 1206,
1214 (10th Cir. 2007) (clarifying that the fourth exception
“looks to whether the waiver is otherwise unlawful, not
to whether another aspect of the proceeding may have involved
legal error”); see also United States v.
Sandoval, 477 F.3d 1204, 1208 (10th Cir. 2007)
(“Our inquiry [under the fourth exception] is not
whether the sentence is unlawful, but whether the waiver
itself is unlawful because of some procedural error or
because no waiver is possible.”). The Tenth Circuit
explained that “[t]o allow alleged errors in computing
a defendant's sentence to render a waiver unlawful would
nullify the waiver based on the very sort of claim it was
intended to waive.” Smith, 500 F.3d at 1213.
also claims his counsel was ineffective and argues that armed
bank robbery is not a crime of violence under the force
clause of § 924(c) because intimidation is insufficient.
He further argues that the issues raised are debatable. But
the court has already addressed these arguments; thus,
defendant's motion is a second petition. Consequently,
the court lacks jurisdiction to consider these claims.
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.
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. “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. App'x 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.
does not argue that newly discovered evidence exists. And, as
addressed above, the court finds that defendant has not shown
that a new rule of constitutional law is applicable to his
case. It is not in the interest of justice to transfer the
case, and the court dismisses defendant's motion without
certificate of appealability is not warranted in this case
because reasonable jurists could not debate whether
“the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (internal citation
THEREFORE ORDERED that defendant Dale Hill's motion to
alter or amend judgment pursuant to Fed.R.Civ.P. 59(e) (Doc.
60) is dismissed.
FURTHER ORDERED that the court will not issue a certificate