United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL, UNITED STATES DISTRICT JUDGE
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).
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.
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).
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).
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).
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.
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.
Rule 60(b) Motion (Doc. #1041)
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.
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