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United States v. Robinson

United States District Court, D. Kansas

December 1, 2017




         This matter comes before the court on defendant Risheen Robinson's pro se[1] “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.

         I. Background

         On 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.[2] 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.

         Mr. 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).

         On 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.

         Now, Mr. Robinson seeks relief from the court's 2014 denial of his § 2255 motion under Fed.R.Civ.P. 60(b).

         II. Analysis

         When a 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 petition.

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) motion. Id.

         Here, 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.[3] Nevertheless, the court must deny this motion.

         A. Substitute for a Timely Appeal

         First, 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 ยง 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 ...

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