United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA United States District Judge.
closed criminal case is before the court on several motions:
(1) Motion to Toll the Time for 28 U.S.C. § 2255 (Doc.
153); (2) Motion Pursuant to 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct a Sentence for Newly Discovered
Evidence to Alter and Amend Judgment for Good Cause in the
Interest of Justice (Doc. 154); (3) Motion for Appointment of
Counsel (Doc. 155); and (4) Motion to Show Cause for
Non-Response to 28 U.S.C. § 2255 Motion for Good Cause
court has already denied a § 2255 motion in this case
(Doc. 152). Defendant's motion to “toll the
time” was filed after the court entered that order (but
signed by defendant on the same day). Defendant later filed
his “new” § 2255 motion, which actually asks
the court to alter or amend Doc. 152. Within the motion,
defendant cites Rule 59(e) and references the court's
denial of his earlier § 2255 motion.
habeas petitioner files a Rule 59(e) or Rule 60(b) motion,
the court must first examine whether the motion is a true
motion to alter or amend judgment or for relief from
judgment. United States v. Pedraza, 466 F.3d 932,
933 (10th Cir. 2006) ((discussing Rule 59(e)); Spitnas v.
Boone, 464 F.3d 1213, 1216 (10th Cir. 2006) (applying
Rule 60(b)). The motion may actually be a second or
successive habeas petition. The question is whether the
motion: (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.”
Spitnas, 464 F.3d at 1215-16. Motions falling under
the first category should be treated as second or successive
petitions. Motions falling under the second or third category
are treated as any other Rule 59(e) or 60(b) motion.
court finds that defendant's motion is actually a second
or successive petition, then it treats it accordingly,
referring the matter to the Tenth Circuit for authorization
if “it is in the interest of justice to do so.”
Id. at 1217; In re Cline, 531 F.3d 1249,
1252 (10th Cir. 2008). If the motion is “mixed, ”
the court will also take mixed action: treating the Rule
59(e) or 60(b) portions as such, and forwarding the remainder
to the Tenth Circuit for authorization if appropriate.
argues in his motion that the court erred in its ruling on
defendant's § 2255 motion. He reargues many of the
same claims, and also contends that the court failed to
address some of his arguments. But the arguments that
defendant says the court failed to address are not found
within defendant's original motion. Defendant indicates
that they are found within a document titled “Amended
Motion and Motion of Newly Discovered Evidence/Actual
Innocence.” The court has not found that document in
motion reasserts grounds for relief from defendant's
conviction and sentence. The challenges would lead
“inextricably to a merits-based attack on the
disposition of [his] prior habeas petition.”
Spitnas, 464 F.3d at 1216. Defendant is not merely
challenging a procedural ruling or a defect in the integrity
of the proceeding. Instead, he asks the court to review again
his request for habeas relief. For these reasons, the court
determines that defendant's motion is properly construed
as a second or successive petition.
28 U.S.C. § 2255, federal prisoners seeking to file a
second or successive motion must first obtain authorization
from the court of appeals before the district court can
consider the motion. In re Cline, 531 F.3d at 1250.
To obtain authorization, the defendant must demonstrate that
the motion is based on a new constitutional rule or on newly
discovered evidence. United States v. Lara-Jiminez,
377 F. App'x 820, 822 (10th Cir. 2010); 28 U.S.C. §
2255(h). When a second unauthorized § 2255 motion is
filed, the court has discretion in determining whether to
transfer the action to the circuit court or dismiss the
action without prejudice. See In re Cline, 531 F.3d
at 1251; see also 28 U.S.C. § 1631.
Tenth Circuit has provided guidance on determining when a
transfer would be in the interest of justice. In re
Cline, 531 F.3d at 1251. “A transfer is not in the
interest of justice when the claims raised in the successive
petition clearly do not meet the requirements set forth in 28
U.S.C. § 2255(h).” Lara-Jiminez, 377 F.
App'x at 822 (citing In re Cline, 531 F.3d at
1252). Section 2255(h) identifies two situations in which a
second or successive motion is certifiable: (1) certain newly
discovered evidence exists; or (2) certain new rules of
constitutional law have been announced. While defendant
cites the standards for new evidence, he does not actually
explain what, if any, new evidence has been identified. And
the court also finds no indication that defendant's
claims have merit; they are merely a rehashing of claims
previously rejected by the court. The court therefore finds
that it is not in the interest of justice to transfer the
case. The court dismisses defendant's motion without
Rule 11 of the Rules Governing Section 2255 Proceedings
directs the court to issue or deny a certificate of
appealability when it issues a final adverse order. The court
will issue a certificate of appealability “only if the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
Under this standard, a defendant must show that
“reasonable jurists could debate whether . . . the
petition should have been resolved in a different manner or
that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (citation omitted).
To the extent that a certificate of appealability is
necessary in this case, the court is not convinced that its
conclusions are debatable among reasonable jurists or that
the issues presented merit further proceedings. For the
reasons stated above, the court finds that defendant has not
made a substantial showing of the denial of a constitutional
right. The court declines to issue a certificate of
other motions are denied. The court has considered
defendant's motion to alter or amend-despite its
questionable timeliness. Appointment of counsel is not
warranted, as the court has previously held in this case
(Doc. 142). And the government did respond to defendant's
motion (Doc. 157), so there is no basis for ordering the
government to show cause.
IS THEREFORE ORDERED that Motion Pursuant to 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct a
Sentence for Newly Discovered Evidence to Alter and Amend
Judgment for Good Cause in the Interest of Justice (Doc. 154)
is dismissed without prejudice as a second or successive
§ 2255 motion.
IS FURTHER ORDERED that, to the extent that a ruling
is necessary, the court denies a certificate of appealability
as to this order.
IS FURTHER ORDERED that defendant's Motion to
Toll the Time for 28 U.S.C. § 2255 (Doc. 153); Motion
for Appointment of Counsel (Doc. 155); and Motion to Show
Cause for Non-Response to 28 ...