United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL, UNITED STATES DISTRICT JUDGE
18, 2013, the Court sentenced defendant to 144 months in
prison. On August 5, 2016, the Court overruled
defendant's motion to vacate sentence under 28 U.S.C.
§ 2255. See Memorandum And Order (Doc. #242).
Defendant appealed. On January 24, 2017, the Tenth Circuit
Court of Appeals denied defendant's request for a
certificate of appealability and dismissed his appeal.
See Order Denying Certificate Of Appealability And
Dismissing The Appeal (Doc. #259). This matter is before
the Court on defendant's Motion Under Federal Rule Of
Civil Procedure 60(b)(3), (6) (Doc. #277) filed July 31,
2017, which the Court also construes as a second or
successive motion to vacate sentence under 28 U.S.C. §
2255; defendant's Motion For An Investigation For
Obstruction Of Justice Pursuant To 28 U.S.C. § 535
(Doc. #276) filed July 31, 2017 and defendant's
Motion To Reconsider Pursuant To Fed. Rule Of Civil
Procedure 59 (Doc. #278) filed August 14, 2017. For
reasons stated below, the Court dismisses defendant's
motion to vacate for lack of jurisdiction and overrules his
October 6, 2011, a grand jury charged Rodney McIntosh with
nine counts of forcible assault against Bureau of Prisons
(“BOP”) employees in violation of 18 U.S.C.
§ 111(a)(1). See Indictment (Doc. #1).
Each count pertained to different incidents involving various
pretrial motion to dismiss, defendant claimed that in
violation of Brady v. Maryland, 373 U.S. 83 (1963),
the government had destroyed material exculpatory evidence.
See Motion To Dismiss (Doc. #35) filed June 7, 2012.
On June 26, 2012, the Honorable Beth Phillips of the United
States District Court for the Western District of Missouri,
sitting by designation, overruled the motion. See
Transcript Of Motions Hearing (Doc. #190) at 9. Judge
Phillips found that (1) the exculpatory value of the evidence
was not apparent and (2) to the extent that the evidence was
potentially useful, defendant had presented no evidence that
the government had acted in bad faith. See id.
seven-day trial, a jury found defendant not guilty on Count 1
and guilty on Counts 2 through 9. On June 18, 2013, defendant
proceeded pro se at sentencing. Defendant's total offense
level was 20, with a criminal history category VI, resulting
in a guideline range of 70 to 87 months in prison. The
statutory penalty under each count did not include a minimum
term but included a maximum term of eight years in prison.
See 18 U.S.C. § 111(a)(1). The Court sentenced
defendant to 144 months in prison. The Court found that a
variance was appropriate because (1) not all counts of
conviction resulted in an increase in the applicable
guideline range; (2) the instant offenses were egregious in
nature, in that (among other things) defendant threw bodily
fluids on prison guards and told at least one victim that he
would sexually assault members of the victim's family;
(3) after trial, defendant continued his assaultive and
disruptive conduct toward correctional officers at
Corrections Corporation of America; (4) defendant had an
extensive criminal history, including five prior felony
convictions - three of which involved weapons and (5)
defendant had not accepted responsibility for any of his
criminal conduct. See Statement of Reasons (Doc.
#174) at 3.
appealed. On appeal, defendant argued that the Court erred in
overruling his motion to dismiss and that his sentence was
procedurally and substantively unreasonable. On July 30,
2014, the Tenth Circuit affirmed. See United States v.
McIntosh, 573 F.App'x 760 (10th Cir. 2014). On
December 8, 2014, the Supreme Court denied defendant's
petition for a writ of certiorari. See United States v.
McIntosh, 135 S.Ct. 768 (2014).
February 23, 2015, defendant filed a motion to vacate his
sentence under 28 U.S.C. § 2255. Defendant asserted
claims of judicial error, ineffective assistance of counsel
and prosecutorial misconduct. On August 5, 2016, the Court
overruled defendant's motion. See Memorandum And
Order (Doc. #242). Defendant appealed. On January 24,
2017, the Tenth Circuit denied a certificate of appealability
and dismissed his appeal. See Order Denying Certificate
Of Appealability And Dismissing Appeal (Doc. #259).
31, 2017, defendant filed the instant motion under Rule
60(b), Fed.R.Civ.P. Defendant asks the Court to reconsider
the order that overruled his Section 2255 motion. Defendant
alleges that the government committed fraud because it (1)
asked a grand jury to return an indictment without a
complaint, (2) misled the grand jury when it failed to
disclose that it was a fictitious plaintiff, (3) presented
perjured testimony at trial, (4) failed to submit jury
instructions which included a correct statement of the law
and (5) misrepresented facts during the Section 2255
proceedings. Doc. #277 at 1-14. Defendant also alleges that
during the Section 2255 proceeding, the Court erred because
(1) it did not adjudicate his claim under Brady v.
Maryland, 373 U.S. 83 (1963) and (2) in addressing his
claim that at trial, certain lay witnesses gave expert
testimony, it mischaracterized facts. Id. at 11-12.
Basis For Relief Requested In Defendant's Motion (Doc.
the Court addresses how to construe defendant's motion.
Although defendant has filed his motion under Rule 60(b)(3)
and 60(b)(6), Fed. R. Civ. P., the Court must determine if
the motion is in fact an unauthorized second or successive
petition under 28 U.S.C. § 2255. See United States
v. Nelson, 465 F.3d 1145, 1147 (10th Cir. 2006) (relief
sought, not pleading's title, determines whether pleading
is Section 2255 motion); United States v. Torres,
282 F.3d 1241, 1242, 1246 (10th Cir. 2002) (to allow
petitioner to avoid bar against successive habeas petitions
by styling petition under different name would severely erode
procedural restraints under Sections 2244(b)(3) and 2255). To
determine whether a Rule 60(b) motion represents a second or
successive petition, a “true” Rule 60(b) motion,
or a “mixed” motion, the Court considers
separately each issue raised in the motion. Spitznas v.
Boone, 464 F.3d 1213, 1224 (10th Cir. 2006). In the case
of a mixed motion, the Court (1) addresses the merits of the
true Rule 60(b) allegations as it would in any other Rule
60(b) motion and (2) forwards the second or successive claims
to the Tenth Circuit for authorization if doing so is in the
interest of justice. Alford v. Cline, No. 17-3017,
2017 WL 2473311, at *2 (10th Cir. June 8, 2017);
Spitznas, 464 F.3d at 1217.
Court deems an issue raised in a Rule 60(b) motion to be part
of a second or successive Section 2255 motion unless it (1)
challenges only a procedural ruling (such as timeliness)
which precluded a merits determination of the habeas
application or (2) 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.
Spitznas, 464 F.3d at 1215-16. An issue should be
considered part of a second or successive petition “if
it in substance or effect asserts or reasserts a federal
basis for relief from the petitioner's underlying
conviction.” Id. at 1215.
four issues of fraud concerning the grand jury and trial
proceedings do not assert defects in the prior “federal
habeas proceeding.” Id. at 1216. They present
a merits-based attack on the Court's ruling on his first
Section 2255 motion. Accordingly, the Court construes these
claims as part of a second or successive Section 2255 motion.
See id. at 1215-16 (second or successive claims in
substance or effect assert or reassert federal basis for
relief); see also United States v. Moreno, 655
F.App'x 708, 713 (10th Cir. 2016) (motion to reconsider
which reargues and expands upon prior substantive challenges
to conviction not true Rule 60(b) motion); United States
v. Scott, 644 F.App'x 837, 838-39 (10th Cir. 2016)
(fraud allegations related to grand jury proceedings properly
construed as successive petition under Section 2255);
United States v. Claycomb, 577 F.App'x 845,
846-47 (10th Cir. 2014) (fraud claims that reargue legal
standard for establishing drug quantity not true Rule 60(b)
claims); United States v. Baker, 718 F.3d 1204,
1206- 07 (10th Cir. 2013) (fraud allegations related to
underlying criminal proceedings construed under Section 2255,
claims did not challenge integrity of habeas proceedings).
fifth claim of fraud, defendant asserts that the government
misrepresented facts during the Section 2255 proceedings.
Although this claim asserts a defect in the habeas
proceeding, it involves a merits-based attack on the
disposition of his prior petition. The Court therefore treats
defendant's fifth claim of fraud ...