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United States v. Craig

United States District Court, D. Kansas

December 15, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
CHRISTOPHER CRAIG, Defendant.

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL, UNITED STATES DISTRICT JUDGE

         On August 28, 2014, the Court sentenced defendant to life in prison. See Minute Entry (Doc. #804). On March 16, 2017, defendant filed a pro se motion to vacate his sentence under 28 U.S.C. § 2255. Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Doc. #1009). On October 30, 2017, the Court overruled defendant's motion. Memorandum And Order (Doc. #1039).

         This matter is before the Court on defendant's pro se Motion Pursuant To Rule 60(b) Seeking To Set Aside Order Denying Habeas Relief (Doc. #1041) filed November 27, 2017 and Petitioner's Motion For Leave To Amend His Original § 2255 Petition (Doc. #1042) filed November 27, 2017. For reasons stated below, the Court overrules defendant's motions.

         Factual Background

         On November 20, 2013, a grand jury returned a 27-count indictment which charged defendant with conspiring to manufacture, to possess with intent to distribute, and to distribute five kilograms or more of cocaine, 280 grams or more of cocaine base and marijuana, and maintaining a drug-involved premises in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1), 846, 856 (Count 1) and two counts of using a communication facility to facilitate a drug trafficking crime in violation of 21 U.S.C. § 843(d) (Counts 15 and 16). Second Superseding Indictment (Doc. #439) at 4, 8. On February 3, 2014, the day trial was scheduled to begin, defendant pled guilty to all three counts without a plea agreement. Petition To Enter Plea Of Guilty And Order Entering Plea (Doc. #560); Transcript Of Change Of Plea Hearing (Doc. #874) filed November 20, 2014. After his plea, under 21 U.S.C. § 841(b)(1)(A), defendant faced a statutory minimum of ten years and maximum of life in prison. On August 28, 2014, the Court sentenced defendant to life in prison. See Minute Entry (Doc. #804).

         Defendant appealed his sentence and judgment. Notice Of Appeal (Doc. #807) filed September 4, 2014. On January 13, 2016, the Tenth Circuit affirmed. See United States v. Craig, 808 F.3d 1249, 1255-63 (10th Cir. 2015).

         On March 16, 2017, as noted, defendant filed a pro se motion to vacate his sentence under 28 U.S.C. § 2255. Motion To Vacate (Doc. #1009). In his Section 2255 motion, among other things, defendant asserted that the Court had erred by sentencing him above the statutory sentencing range and that his counsel provided ineffective assistance because he failed to object to the statutory sentencing range. Id. at 4, 8. On June 26, 2017, the United States filed its response to defendant's motion. Response To Motion (Doc. #1021). On October 30, 2017, the Court overruled defendant's motion. Memorandum And Order (Doc. #1039).

         On November 27, 2017, defendant filed his Rule 60(b) motion and his motion for leave to amend his original Section 2255 motion. See Docs. ##1041, 1042. In the Rule 60(b) motion, defendant asserts that on July 31, 2017, he sent a reply brief in support of his original Section 2255 motion to the Clerk of Court and that he received confirmation of its delivery. Doc. #1041, ¶ 3. A few weeks later, he noticed that the Clerk had not docketed his reply, so he sent another copy to the Clerk. Id., ¶ 4. On August 30, 2017, defendant received confirmation of delivery of the second copy. Id. Neither reply was docketed. Id., ¶ 5. The Clerk's Office has no record of receiving either reply brief. Moreover, defendant has not provided copies of the delivery confirmations which he allegedly received. Defendant provided additional support for an ineffective assistance claim and sought leave to amend his original Section 2255 motion in his putative reply. Doc. #1041, ¶ 3; see Petitioner's Amended § 2255 Motion/Reply to Government's Response In Opposition (Doc. #1042-1) filed November 27, 2017. Defendant now asks the Court to set aside its order overruling his Section 2255 motion because the Court's order did not consider the matters contained in the putative reply.

         In addition, defendant seeks leave to amend his original Section 2255 motion to substitute three claims for the seven claims which he originally asserted. Motion For Leave To Amend (Doc. #1042) at 1. To this motion, defendant attached a proposed amended Section 2255 motion. See Petitioner's Amended § 2255 Motion/Reply To Government's Response In Opposition (Doc. #1042-1) filed November 27, 2017. The proposed motion asserts ineffective assistance because (1) counsel allowed defendant to plead guilty to a crime that was not supported by a sufficient factual basis; (2) counsel failed to object to the statutory sentencing range; and (3) before defendant agreed to the plea, counsel did not discuss a potential sentence enhancement with him. Id. at 3-11.

         Analysis

         I. Rule 60(b) Motion (Doc. #1041)

         The relief sought - not a motion's title - determines whether the movant has filed a true motion for relief under Rule 60(b), Fed. R. Civ. P., or an unauthorized second or successive petition under Section 2255. United States v. Nelson, 465 F.3d 1145, 1149 (10th Cir. 2006); see also United States v. Torres, 282 F.3d 1241, 1242, 1246 (10th Cir. 2002) (allowing petitioner to avoid bar against successive petitions by styling petition under different name would erode procedural restraints of Sections 2244(b)(3) and 2255). The Court considers each issue raised in the motion to determine whether it represents a successive petition, a Rule 60(b) motion or a “mixed” motion. Spitznas v. Boone, 464 F.3d 1213, 1224 (10th Cir. 2006). A true Rule 60(b) motion (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 proceedings. Id. at 1224-25. Defendant asserts a defect in the federal habeas proceedings, i.e. that the Court did not consider his reply due to a docketing error. See Rule 60(b) Motion (Doc. #1041) at 1-2. Thus, defendant presents a true Rule 60 motion.

         The Court has discretion to grant or deny a motion to vacate or set aside a judgment under Rule 60(b). See F.D.I.C. v. United Pac. Ins. Co., 152 F.3d 1266, 1272 (10th Cir. 1998). Relief under Rule 60(b) is extraordinary and may only be granted in exceptional circumstances. See Yapp v. Excel Corp., 186 F.3d 1222, 1231 (10th Cir. 1999). Under Rule ...


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