United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA United States District Judge
matter comes before the court on defendant Paul L.
Hartfield's Motion for Rehearing for Relief on Account of
Ineffective Asistance [sic] of Counsel or Aternatively [sic]
for an Order Allowing an Appeal if the Motion is Denied (Doc.
234) and Motion to Modify Term of Imprisonment Pursuant to 18
U.S.C. 3582(c) (Doc. 238). Defendant is currently serving a
78-month prison sentence after he pled guilty to one count of
Conspiracy to Commit Bank Fraud and Money Laundering in 2012.
As part of his plea agreement, defendant waived his right to
appeal his conviction and sentence.
has filed numerous unsuccessful motions requesting
modification of his sentence. Here, defendant first argues he
received ineffective assistance of counsel during plea
negotiations and asks for a hearing or an order allowing him
to file an appeal. Although defendant waived his appeal
rights, defendant argues he is entitled to bring the present
challenge under United States v. Cockerham, 237 F.3d
1179 (10th Cir. 2001). In Cockerham, the Tenth
Circuit recognized that while a waiver of appeal rights in a
plea agreement is generally enforceable, the waiver itself
may be challenged if the defendant establishes it was made
involuntarily or unknowingly, or if the agreement is
otherwise unlawful. 237 F.3d at 1181-82. Regardless of
whether defendant has a meritorious argument regarding the
validity of his appeal waiver, defendant is time-barred from
bringing any collateral attack. Post- conviction motions for
habeas relief filed under 28 U.S.C. § 2255 “must
be brought within one year of the date on which ‘the
judgment of conviction becomes final' or ‘the right
asserted [by petitioner] was initially recognized by the
Supreme Court, if that right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on
collateral review.'” United States v.
Greer, 881 F.3d 1241, 1244 (10th Cir. 2018). Defendant
was sentenced in 2012 and the time to file any collateral
motions has long passed.
this court has interpreted at least one of defendant's
prior motions as one brought under § 2255. “A
prisoner may not file a second or successive motion under
§ 2255 unless it is ‘certified ... by a panel of
the appropriate court of appeals to contain ... newly
discovered evidence ... or ... a new rule of constitutional
law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable.”
United States v. Nelson, 465 F.3d 1145, 1147 (10th
Cir. 2006). The court therefore does not have jurisdiction to
consider defendant's motion.
also brings a motion to modify his prison sentence under 18
U.S.C. § 3582(c). Under § 3582(c), a court may not
modify a term of imprisonment except:
[I]n the case of a defendant who has been sentenced to a term
of imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission
pursuant to 28 U.S.C. 994(o), upon motion of the defendant or
the Director of the Bureau of Prisons, or on its own motion,
the court may reduce the term of imprisonment, after
considering the factors set forth in section 3553(a) to the
extent that they are applicable, if such a reduction is
consistent with applicable policy statements issued by the
18 U.S.C. § 3582(c)(2)
alleges that his total offense level under the Sentencing
Guidelines included an 18-point enhancement based on the loss
table in U.S.S.G. § 2B1.1(b)(1)(J), and that the loss
table has since been lowered. He claims that based on the
current loss table, his offense level should only be enhanced
by 16 points.
court has reviewed defendant's presentence investigation
report and determined that defendant's base offense level
was increased by 18 points based on a $4, 171, 836.25 loss
calculation. At the time defendant was sentenced, the
18-point enhancement applied to loss of more than $2, 500,
000. Under the current Sentencing Guidelines, an 18-point
enhancement is added to the base offense level for loss of
more than $3, 500, 000 but less than $9, 500, 000. Because
the total loss in defendant's case is more than $3, 500,
000, the 18-point enhancement still applies. There is
therefore no reason for the court to modify defendant's
sentence and his motion is denied.
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. A certificate of appealability
is not warranted in this case because reasonable jurists
could not debate whether the motion “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) (internal citation omitted).
IS THEREFORE ORDERED that defendant's Motion for
Rehearing for Relief on Account of Ineffective Asistance
[sic] of Counsel or Aternatively [sic] for an Order Allowing
an Appeal if the Motion is Denied (Doc. 234) is dismissed.
IS FURTHER ORDERED that defendant's Motion to
Modify Term of Imprisonment Pursuant to 18 ...