United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL United States District Judge
matter is before the Court on defendant's Motion For Fed.
Rule Of Civ. Pro. 60(b)(6) Reconsideration To Correct Error
In [A] 28 U.S.C. § 2255 Proceeding (Doc. #158) filed
March 9, 2017, which the Court construes as both a motion to
reconsider under Rule 60(b)(6), Fed. R. Civ. P., and a second
or successive motion to vacate sentence under 28 U.S.C.
§ 2255. For reasons stated below, the Court overrules
defendant's motion to reconsider and dismisses
defendant's motion to vacate for lack of jurisdiction.
October 7, 2010, a grand jury charged defendant with
conspiracy to distribute 50 or more grams of crack cocaine
(Count 1), being a felon in possession of a firearm (Count 2)
and three counts of distribution of crack cocaine (Counts
3-5). Kirk Redmond initially represented defendant. On
February 3, 2011, the Court granted defendant's pro se
motion to have Redmond withdraw as defense counsel. On
February 4, 2011, Carl Cornwell entered an appearance on
behalf of defendant. On February 25, 2011, defendant pled
guilty to one count of a superseding information which
charged him with conspiracy to manufacture, to possess with
intent to distribute and to distribute five grams or more of
“crack” cocaine, in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(B)(iii).
initial Presentence Investigation Report (“PSIR”)
found defendant responsible for 41.08 grams of crack cocaine
and noted that he qualified for a three-level reduction of
his offense level for acceptance of responsibility.
See PSIR (Doc. #32) filed May 24, 2011, ¶ 19.
Defendant therefore had a total offense level of 25 with a
criminal history category III for a guideline range of 70 to
87 months. See id., ¶ 77.
objected to the drug quantity in the initial PSIR. At the
first sentencing hearing, Lakesha Wesley and Tynisha Mays
testified that defendant's conduct involved a greater
quantity of crack cocaine than the PSR estimated. Defendant
testified that he should be held accountable for less than
41.08 grams. Based on the testimony at the hearing, the Court
ordered a revised PSIR. The revised PSIR held defendant
accountable for 189.78 grams of crack cocaine, removed the
reduction for acceptance of responsibility and assessed
defendant a two-level enhancement for obstruction of justice.
See Amended PSIR (Doc. #41) filed June 30, 2011,
¶¶ 21, 24-28, 34.
August 17, 2011, the Court allowed Cornwell to withdraw and
appointed Jeffrey Morris to represent defendant. At a hearing
on defendant's motion to withdraw his plea of guilty,
defendant testified that he has a learning disability and
that before the plea hearing, Cornwell did not review with
him the superseding information, the plea agreement or the
petition to enter a plea of guilty. Defendant testified that
Cornwell told him to falsely tell the Court that he had
reviewed those documents. Defendant stated that he was
confused during the plea hearing and did not understand that
the superseding information charged him with conspiracy.
Defendant testified that he thought that he was pleading
guilty to simple possession. He also asserted that he did not
understand the potential effect of relevant conduct on his
sentence. The Court found that viewed as a whole, the plea
colloquy did not demonstrate that defendant was so confused
about the potential sentence as to render his plea unknowing
or involuntary. Based on all relevant factors, the Court
found that defendant did not show a “fair and just
reason for requesting the withdrawal.” Fed. R. Crim. P.
sentencing on March 30, 2012, the Court sustained
defendant's objection to the two-level enhancement for
obstruction of justice. Defendant had a revised total offense
level of 36 with a criminal history category III for a
guideline range of 235 to 240 months. See Transcript Of
Motions And Sentencing (Doc. #106) at 25, 53. The Court
sentenced defendant to 235 months. The Tenth Circuit
affirmed. See United States v. Lee, 535 F. App'x
677 (10th Cir. Sept. 5, 2013).
23, 2014, defendant filed a motion to vacate his sentence
under 28 U.S.C. § 2255. Defendant's motion asserted
that (1) the superseding indictment was defective because it
failed to charge an offense; (2) the Court lacked subject
matter jurisdiction; (3) Cornwell provided ineffective
assistance; (4) the Court imposed an illegal sentence and (5)
Morris provided ineffective assistance. On October 15, 2015,
the Court overruled defendant's motion and denied a
certificate of appealability. See Memorandum And
Order (Doc. #140). On March 4, 2016, the Tenth Circuit
denied a certificate of appealability and dismissed his
appeal. See United States v. Lee, 637 F. App'x
525 (10th Cir. 2016).
October 13, 2016, defendant filed a second motion to vacate
his sentence under 28 U.S.C. § 2255. Defendant asserted
that he was entitled to be resentenced in light of Amendment
794 to the Sentencing Guidelines which took effect November
1, 2015. On October 25, 2016, the Court dismissed
defendant's motion to vacate for lack of jurisdiction.
See Memorandum And Order (Doc. #150).
March 9, 2017, defendant filed the instant motion under Rule
60(b), Fed.R.Civ.P. Defendant asks the Court to reconsider
its order which overruled his first Section 2255 motion,
i.e. the Court's Memorandum And Order
(Doc. #140) filed October 15, 2015. In his motion, defendant
raises multiple claims including many of which the Court
previously addressed. First, defendant alleges that Cornwell
provided ineffective assistance because (1) he did not
anticipate that the government would change its policy on the
retroactivity of the amendment to the Fair Sentencing Act of
2010, Pub. L. No. 111-220, 124 Stat. 2372
(“FSA”), (2) he did not ask to continue the case
so that defendant could receive the benefit of the FSA
amendment, (3) he did not litigate the retroactivity of the
FSA amendment before defendant pled guilty and (4) he advised
defendant to accept the plea offer based on a
misunderstanding of the structure and mechanics of the
Guidelines. Motion For Fed. Rule Of Civ. Pro. 60(b)(6)
Reconsideration To Correct Error In [A] 28 U.S.C. § 2255
Proceeding (Doc. #158) at 2-4. Defendant alleges that
Morris provided ineffective assistance because (1) at
sentencing, he did not object to the proposed statutory and
guideline ranges and (2) on appeal, he did not raise the FSA
claim. Id. at 6. Defendant maintains that the Court
erred because (1) it did not comply with Rule 11 at the
change of plea hearing by misadvising defendant of the
statutory minimum, (2) it did not correctly apply the FSA
amendment and (3) it did not allow defendant to withdraw his
plea of guilty before sentencing. Id. at 4, 7;
Supplement To Defendant's Rule 60(b)(6)
Reconsideration Motion (Doc. #152) filed March 9, 2017
at 1-2. Defendant also alleges fraud on the Court and
prosecutorial misconduct because the prosecutor misadvised
the Court on the statutory minimum during the Rule 11 plea
colloquy. Motion For Fed. Rule Of Civ.
60(b)(6) Reconsideration To Correct Error In [A] 28 U.S.C.
§ 2255 Proceeding (Doc. #151) at 5.
I. Basis For Relief Requested In ...