United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. CRABTREE UNITED STATES DISTRICT JUDGE.
matter comes before the court on defendant Risheen
Robinson's pro se “Motion Pursuant to Rule 60(b)(5)
& (6) to Reopen Case and Set Aside Order Denying
Relief” (Doc. 136). For the reasons described below,
the court denies Mr. Robinson's motion.
August 26, 2010, a jury convicted Mr. Robinson of violating
21 U.S.C. § 841(a)(1) for distributing a mixture or
substance containing a detectable quantity of cocaine base.
Mr. Robinson had four qualifying prior convictions, making
him a career offender under the U.S. Sentencing
Guidelines. The U.S. Probation Office prepared a
Presentence Investigation Report (“PSR”) with a
sentencing range of 262-327 months based on that designation.
On December 17, 2010, the court conducted a sentencing
hearing. Mr. Robinson objected to the career offender finding
under the Guidelines. But, the court found that the PSR
correctly classified him as a career offender and imposed a
guideline sentence of 262 months.
Robinson directly appealed his sentence to the Tenth Circuit.
United States v. Robinson, 437 F. App'x 733
(10th Cir. 2011). There, he challenged the substantive
reasonableness of his sentence. Id. at 735. But, the
Tenth Circuit rejected his arguments and affirmed the
district court's judgment. Id. at 736. On
January 9, 2012, the Supreme Court denied Mr. Robinson's
petition for certiorari. Robinson v. United States,
565 U.S. 1136 (2012).
August 28, 2013, Mr. Robinson filed a motion under 28 U.S.C.
§ 2255. The court found that the motion was
procedurally-barred and time-barred. On November 8, 2013, Mr.
Robinson filed a notice of appeal challenging the court's
order. But, he failed to prosecute and the Tenth Circuit
dismissed his appeal on February 27, 2014. On April 4, 2017,
the Tenth Circuit denied Mr. Robinson's authorization to
file a second or successive § 2255 motion.
Mr. Robinson seeks relief from the court's 2014 denial of
his § 2255 motion under Fed.R.Civ.P. 60(b).
habeas petitioner files a Rule 60(b) motion, the court must
first examine whether the motion is a true motion to alter or
amend judgment or relief from judgment. United States v.
Shaw, No. CR 05-20073-CM, 2017 WL 2191345, at *1 (D.
Kan. May 17, 2017) (citing Spitznas v. Boone, 464
F.3d 1213, 1216 (10th Cir. 2006)). “The motion may
actually be a second or successive [§ 2255]
petition.” Id. To determine whether a motion
is a true Rule 60(b) motion or a second or successive §
2255 petition, the court decides into which of three
categories the motion falls:
(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
Id. (quoting Spitznas, 464 F.3d at 1215-16)
(internal quotations omitted). “Motions falling under
the first category should be treated as second or successive
petitions.” Id. Motions falling under the
second or third category are treated as any other 60(b)
the government asserts that Mr. Robinson challenges the
court's procedural ruling that precluded resolution of
his § 2255 motion on the merits. But, Mr. Robinson
argues that he challenges a defect in the integrity of the
prior habeas proceeding. Doc. 139 at 2. The court treats both
challenges as any other 60(b) motion so Mr. Robinson brings
his motion under the proper rule. Nevertheless, the court must
deny this motion.
Substitute for a Timely Appeal
the court must deny Mr. Robinson's motion because it is a
substitute for a timely appeal. See Bud Brooks Trucking,
Inc. v. Bill Hodges Trucking Co., 909 F.2d 1437, 1440
(10th Cir. 1990) (“[A] Rule 60(b) motion is not a
substitute for an appeal.”); see also Fackelman v.
Bell, 564 F.2d 734, 737 (5th Cir. 1977) (“A
60(b)(6) motion is an extraordinary remedy; like the 60(b)
motion generally, it is not a substitute for appeal, and it
is ordinarily not available to one who fails to
appeal.”). A habeas petitioner's “voluntary,
deliberate, free, [and] untrammeled choice” not to
appeal cannot provide a basis for Rule 60(b) relief. See
Ackermann v. United States, 340 U.S. 193, 200 (1950). It
appears that Mr. Robinson alleges that his untimely §
2255 motion was a result of his inmate legal assistance. Doc.
136 at 2. He could have raised this reason when he appealed
the court's denial of his ...