Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. McIntosh

United States District Court, D. Kansas

April 17, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
RODNEY MCINTOSH, Defendant.

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE.

         On June 18, 2013, the Court sentenced defendant to 144 months in prison. This matter is before the Court on defendant's Motion [Under] Federal Rule Of Civil Procedure 60(b) (Doc. #299) filed March 5, 2018, which the Court construes as a second or successive motion to vacate sentence under 28 U.S.C. § 2255. For reasons stated below, the Court dismisses defendant's motion for lack of jurisdiction.

         Factual Background

         On October 6, 2011, a grand jury charged Rodney McIntosh with nine counts of forcible assault against Bureau of Prisons (“BOP”) employees in violation of 18 U.S.C. § 111(a)(1). See Indictment (Doc. #1). Each count pertained to different incidents involving various BOP employees.

         After a seven-day trial, a jury found defendant not guilty on Count 1 and guilty on Counts 2 through 9. Shortly after trial, defendant filed several pro se motions and asked the Court to appoint new counsel. On February 13, 2013, defendant withdrew his request for new counsel. In March of 2013, the Court sustained defendant's request to proceed pro se. Subsequently, the Court overruled some 40 pro se post-trial defense motions.

         On June 18, 2013, defendant proceeded pro se at sentencing. Defendant's total offense level was 20, with a criminal history category VI, resulting in a guideline range of 70 to 87 months in prison. The statutory penalty under each count did not include a minimum term but included a maximum term of eight years in prison. See 18 U.S.C. § 111(a)(1). The Court sentenced defendant to a total term of 144 months in prison. The term of imprisonment consisted of 96 months on each of Counts 2 through 8, to be served concurrently, and 96 months on Count 9, of which 48 months to be served consecutively to the other counts and 48 months to be served concurrently to the other counts.

         Defendant appealed. On appeal, defendant argued that the Court erred in overruling his motion to dismiss and that his sentence was procedurally and substantively unreasonable. On July 30, 2014, the Tenth Circuit affirmed. See United States v. McIntosh, 573 Fed.Appx. 760 (10th Cir. 2014). On December 8, 2014, the Supreme Court denied defendant's petition for a writ of certiorari. See United States v. McIntosh, 135 S.Ct. 768 (2014).

         On August 5, 2016, the Court overruled defendant's initial Section 2255 motion and numerous related motions. See Memorandum And Order (Doc. #242). On January 24, 2017, the Tenth Circuit denied a certificate of appealability and dismissed defendant's appeal. See Order Denying Certificate Of Appealability And Dismissing Appeal (Doc. #259).

         On March 5, 2018, defendant filed the instant motion for relief under Rule 60, Fed.R.Civ.P. Defendant argues that in ruling on his Section 2255 motion, the Court erred in overruling his claim that his sentence of 144 months exceeds the statutory maximum of 96 months on each count.

         Analysis

         I. Basis For Relief Requested In Defendant's Motion

         Initially, the Court addresses how to construe defendant's motion. Although defendant has filed his motion under Rule 60(b), Fed. R. Civ. P., the Court must determine if the motion is in fact an unauthorized second or successive petition under 28 U.S.C. § 2255. See United States v. Nelson, 465 F.3d 1145, 1147 (10th Cir. 2006) (relief sought, not pleading's title, determines whether pleading is Section 2255 motion); United States v. Torres, 282 F.3d 1241, 1242, 1246 (10th Cir. 2002) (to allow petitioner to avoid bar against successive habeas petitions by styling petition under different name would severely erode procedural restraints under Sections 2244(b)(3) and 2255). To determine whether a Rule 60(b) motion represents a second or successive petition, a “true” Rule 60(b) motion, or a “mixed” motion, the Court considers separately each issue raised in the motion. Spitznas v. Boone, 464 F.3d 1213, 1224 (10th Cir. 2006). In the case of a mixed motion, the Court (1) addresses the merits of the true Rule 60(b) allegations as it would in any other Rule 60(b) motion and (2) if doing so is in the interest of justice, forwards the second or successive claims to the Tenth Circuit for authorization. Alford v. Cline, 696 Fed.Appx. 871, 873 (10th Cir. 2017); Spitznas, 464 F.3d at 1217.

         The Court deems an issue raised in a Rule 60(b) motion to be part of a second or successive Section 2255 motion unless it (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 proceeding, provided that such a challenge does not itself lead inextricably to a merits-based attack on the disposition of a prior habeas petition. Spitznas, 464 F.3d at 1215-16. 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 petitioner's underlying conviction.” Id. at 1215.

         Defendant argues that the Court erred in overruling his prior claim that his sentence of 144 months exceeds the statutory maximum of 96 months on each count. Motion [Under] Federal Rules Of Civil Procedure 60(b) (Doc. #299) at 3. In ruling on defendant's Section 2255 motion, the Court held that defendant's claim was procedurally barred because he had not raised the issue on direct appeal and that his claim lacked substantive merit. Memorandum And Order (Doc. #242) at 8-9, 25-26. The Tenth Circuit denied a certificate of appealability based on this Court's procedural ruling that his claim was barred because he did not raise it on direct appeal. Order Denying Certificate Of Appealability And Dismissing Appeal (Doc. #259) at 2-3. In his present motion, defendant does not challenge this Court's procedural bar ruling. Instead, defendant challenges the Court's ruling that his claim lacked substantive merit. Defendant's present claim leads inextricably to a merits-based attack on the disposition of his prior Section 2255 motion. In substance, defendant argues that his original sentence was erroneous. The Court therefore construes this claim as part of a successive motion to vacate under 28 U.S.C. § 2255. See ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.