United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL United States District Judge.
23, 2010, the Court sentenced defendant to 360 months in
prison. On August 20, 2010, the Court overruled
defendant's Motion Under 28 U.S.C. § 2255 To Vacate,
Set Aside, Or Correct Sentence By A Person In Federal Custody
(Doc. #904) filed July 19, 2010. Memorandum And Order (Doc.
#916). On February 11, 2015, under Amendment 782 to the
Sentencing Guidelines, the Court reduced defendant's
sentence to 292 months in prison (the low end of the amended
December 16, 2016, the Court dismissed defendant's Motion
For Reduction Of Sentence Pursuant To 18 U.S.C. §
3582(c)(2) And In Conjunction With The Amendment 794 To The
Commentary To U.S.S.G. § 3B1.2 (Doc. #1151), which the
Court construed as a second or successive motion to vacate
his sentence under 28 U.S.C. § 2255. Memorandum And
Order (Doc. #1153) at 2-3. On February 24, 2017, defendant
filed a Motion For Reconsideration In Light Of Retroactive
Amendment 794 (Doc. #1154). On May 31, 2017, the Court
overruled this motion. Memorandum And Order (Doc. #1178).
This matter is before the Court on defendant's Memorandum
Motion In Reconsideration [To] The District Court For A
Memorandum And Order To Dismis[s]ed Motion Minor Role
Reduction Under The Amendment 794 Amended § 3B1.2
Pursuant [To] 18 U.S.C. § 3582(c)(2) (Doc. #1186) filed
July 19, 2017. The Court construes this motion as a second or
successive motion to vacate his sentence under 28 U.S.C.
§ 2255. For reasons stated below, the Court
dismisses defendant's motion and denies a certificate of
seeks reconsideration of the Court's order which
overruled his motion to reconsider the Court's
Memorandum And Order (Doc. #1151). Memorandum
Motion In Reconsideration (Doc. #1186) at 1. Defendant
asserts that the Court should reduce his sentence because (1)
the Ninth Circuit has held that “Amendment 794 is
[c]larifying and therefore retroactive, ” id.
at 4; (2) the government failed to prove the quantity of
drugs defendant transported and the Presentence Investigation
Report miscalculated the drug quantity, id. at 5-6,
9; (3) counsel provided ineffective assistance because he did
not receive a sentence reduction for defendant's lack of
criminal history, id. at 8; (4) the government did
not prove what chemicals defendant possessed and did not
adequately verify the type of drugs in his possession,
id. at 10-11; (5) counsel provided ineffective
assistance because he did not object to government testing,
id. at 12; (6) the Court should have dismissed the
indictment because the government did not verify the type of
drugs in defendant's possession, id. at 13-15;
(7) the Court violated his due process rights and counsel
provided ineffective assistance for failing to give him
proper notice of a hearing concerning his sentence
enhancement under U.S.S.G. § 3B1.1(b), id. at
16-17; (8) during the appeal of his first Section 2255
motion, counsel provided ineffective assistance because he
submitted motions without defendant's permission,
id. at 18; and (9) a Western District of Washington
case allows the Court to retroactively modify its sentence
under Amendment 794, Doc. #1189 at 1-3.
Basis For Relief Requested In Defendant's Motion
defendant filed a “Motion In
Reconsideration” (Doc. #1186), the Court must
address how to construe defendant's motion. The relief
sought - not a motion's title - determines how the Court
should construe a motion. United States v.
Wetzel-Sanders, 805 F.3d 1266, 1268 (10th Cir. 2015);
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 petitioners by styling
petition under different name would erode procedural
restraints of Sections 2244(b)(3) and 2255). When determining
the nature of a motion, the Court considers each issue in the
motion. Spitznas v. Boone, 464 F.3d 1213, 1224-25
(10th Cir. 2006). An issue should be considered part of a
second or successive petition “if it in substance or
effect asserts or reasserts a federal basis for relief from
the [defendant's] underlying conviction.”
Id. at 1225.
motion seeks relief from his underlying conviction and
sentence - not the Court's Memorandum And Order
(Doc. #1178) of May 31, 2017. For example, in three claims,
defendant challenges the sufficiency of government evidence
at trial and sentencing; he also asserts four ineffective
assistance claims. See Memorandum Motion In
Reconsideration (Doc. #1186) at 5-6, 9-11, 13-15 (Claims
2, 4 and 6 assert government did not sufficiently prove drug
quantity or type of drugs and/or chemicals); see id.
at 8, 12, 16-18 (Claims 3, 5, 7 and 8 assert counsel was
ineffective for failing to raise arguments at sentencing,
challenge government evidence, give notice of sentencing
hearing and filing motions without defendant's
permission). In Claims 1 and 9, defendant reasserts a claim
that the Court has rejected twice - i.e. that the
Court should apply Amendment 794 retroactively to reduce his
sentence. See Memorandum And Order (Doc. #1153) at
2-3 (“defendant must seek relief based on [clarifying]
amendments as a challenge to his sentence on direct appeal or
in a motion under Section 2255”); see also
Memorandum And Order (Doc. #1178) at 2.
motion which attacks the judgment of conviction or sentence
when a prior motion has already done so constitutes a second
or successive motion under Section 2255. United States v.
McIntosh, No. 17-3195, 2018 WL 798284, at *2 (10th Cir.
Feb. 9, 2018) (quoting Wetzel-Sanders, 805 F.3d at
1268); see Spitznas, 464 F.3d at 1215-17 (10th Cir.
2006) (motions that “assert or reassert a federal basis
for relief from the underlying conviction” second or
successive habeas petitions). As stated, defendant's
claims assert or reassert federal grounds for relief from his
underlying conviction and sentence. Because defendant has
previously sought relief under Section 2255, the Court
construes these claims as part of a second or successive
Section 2255 motion. Id. at 1215.
Relief Under 28 U.S.C. § 2255
stated, defendant previously filed two Section 2255 motions.
See Memorandum And Order (Doc. #916); see also
Memorandum And Order (Doc. #1153) at 2 (construing
motion under Section 3582(c) as second and successive Section
2255 motion). Pursuant to the Antiterrorism and Effective
Death Penalty Act of 1996, defendant may not file a second or
successive motion pursuant to Section 2255 unless he first
applies to the appropriate court of appeals for an order
authorizing the district court to consider the motion.
See 28 U.S.C. §§ 2244(b)(3), 2255(h). If
defendant files a second or successive motion without first
seeking the required authorization, the district court may
(1) transfer the motion to the appellate court if it
determines that it is in the interest of justice pursuant to
28 U.S.C. § 1631 or (2) dismiss the motion for lack of
jurisdiction. See In re Cline, 531 F.3d 1249, 1252
(10th Cir. 2008). The Court has discretion whether to
transfer or dismiss without prejudice. Trujillo v.
Williams, 465 F.3d 1210, 1222-23 (10th Cir. 2006). In
making this decision, the Court considers whether the claims
would be time barred if filed anew in the proper forum, are
likely to have merit and were filed in good faith or, on the
other hand, if it was clear at the time of filing that the
Court lacked jurisdiction. Id. at 1223 n.16.
second or successive motion under 28 U.S.C. § 2255 may
be filed in the district court if the court of appeals
certifies that the motion is based on (1) newly discovered
evidence that if proven and viewed in light of the evidence
as a whole would establish by clear and convincing evidence
that no reasonable fact finder would have found defendant
guilty of the offense; or (2) a new rule of constitutional
law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable. 28 U.S.C.
defendant did not receive authorization from the Tenth
Circuit and it appears that his claims do not satisfy the
authorization standards under Section 2255, the Court
overrules the motion rather than transferring it to the Tenth
Circuit. See In re Cline, 531 F.3d at 1252 (district
court may refuse to transfer motion which fails on face to
satisfy authorization standards of Section 2255(h));
Phillips v. Seiter, 173 F.3d 609, 610 (7th Cir.
1999) (waste of judicial resources to require transfer of
frivolous, time-barred cases). Here, defendant's claims
do not assert new evidence or argue that the Supreme Court
has made retroactive a new rule of constitutional law.
Rather, he challenges the sufficiency of government evidence,
counsels' performance and how the Court applied the
Sentencing Guidelines. He could have asserted these claims on
direct appeal or in his initial Section 2255 motion. Thus,
the Court dismisses his claims for lack of jurisdiction.