United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE.
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.
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
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
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.
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).
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.
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.
Basis For Relief Requested In Defendant's Motion
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.
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.
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 ...