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United States v. Gantt

United States District Court, D. Kansas

January 17, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
DESHANE GANTT, Defendant.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN, UNITED STATES DISTRICT JUDGE.

         Petitioner Deshane Gantt has filed a “Motion Pursuant to Rule 60(b)(5) & (6) to Reopen Case and Set [Aside] Order Denying Relief” (Doc. 76). In this motion, he requests that the Court set aside a November 22, 2013 Order that denied his claims for relief asserted under 28 U.S.C. § 2255. The government contends that the Court lacks jurisdiction to rule on Petitioner's motion because it is an unauthorized successive § 2255 motion. In addition, the government contends that the motion is untimely and substantively infirm. As will be explained below, the Court dismisses Petitioner's motion because it lacks jurisdiction.

         I. Factual and Procedural Background

         The facts surrounding Petitioner's judgment of conviction are as follows. On November 9, 2010, Petitioner was charged with one count of bank robbery in violation of 18 U.S.C. § 2113(a) and (d) (Count I) and one count of carrying, using, and brandishing a firearm during and relating to the bank robbery in violation of 18 U.S.C. § 924(c)(1) (Count II). On January 24, 2011, Petitioner pled guilty to the second count. In his written plea agreement, he admitted that he entered a federal credit union, armed with a 9 mm Highpoint pistol, and ordered several employees to the floor. He removed cash, approximately $7, 800, from the teller drawers and fled the building. On April 25, 2011, the Court sentenced Petitioner to a term of 20 years.

         On May 2, 2011, Petitioner appealed his conviction and sentence to the Tenth Circuit Court of Appeals. He argued that the district court's sentence was both procedurally and substantively unreasonable. The Tenth Circuit affirmed the Court's decision in a decision dated May 30, 2012. In that opinion, the Tenth Circuit stated that “Defendant's sentence was procedurally reasonable because the district court adequately explained why it varied from the guideline sentence, and it was substantively reasonable because the length of the sentence was not an abuse of discretion.”[1]

         On November 1, 2013, Petitioner filed a Motion to Vacate under 28 U.S.C. § 2255. In this motion, Petitioner, proceeding pro se, argued multiple grounds of error including (1) that the district court was without subject matter jurisdiction, (2) that the district judge abused his discretion, (3) prosecutorial misconduct, and (4) ineffective assistance of counsel. On November 22, 2013, the district court found Petitioner's arguments to be without merit and thus denied Petitioner's motion. Petitioner appealed the order to the Tenth Circuit. On April 8, 2014, the Tenth Circuit dismissed the appeal for lack of prosecution.

         Over three years later, on July 19, 2017, Petitioner filed this Motion for Reconsideration. He states that he is proceeding under Fed.R.Civ.P. 60(b)(5) and (6). In this motion, he requests that the Court reopen the case and set aside the previous order denying his § 2255 claim. He also states that he would like the Court to vacate its prior judgment and withdraw his plea for ineffective assistance of counsel. In the alternative, he requests an evidentiary hearing.

         II. Legal Standard

         Under 28 U.S.C. § 2255(a),

[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

         According to Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts,

[t]he judge who receives the motion must properly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion . . . . If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.

         The court must hold an evidentiary hearing on a § 2255 motion “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.”[2] The petitioner must allege facts that, if proven, would warrant relief from his conviction or sentence.[3] An evidentiary hearing is not necessary where a § 2255 motion contains factual allegations that are contradicted by the record, inherently incredible, or when they are conclusions rather than statements of fact.[4]

         III. ...


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