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United States v. McIntosh

United States District Court, D. Kansas

August 22, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
RODNEY MCINTOSH, Defendant. Civil Action No. 17-2483-KHV

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL, UNITED STATES DISTRICT JUDGE

         On June 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 remaining motions.

         Factual Background

         On 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 BOP employees.[1]

         In a 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.

         After a 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.[2] 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.

         Defendant 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).

         On 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).

         On July 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.

         Analysis

         I. Basis For Relief Requested In Defendant's Motion (Doc. #277)

         Initially, 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.

         The 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.

         Defendant's 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).

         In his 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 ...


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