United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE
December 18, 2009, the Court sentenced defendant to life in
prison. This matter is before the Court on defendant's
Motion To Withdraw Guilty Plea Pursuant To Rule 11
(Doc. #494) filed March 26, 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.
April 13, 2009, defendant pled guilty to conspiracy to
distribute and possess with intent to distribute 50 grams or
more of methamphetamine in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A)(viii) and 846. On December
18, 2009, the Court sentenced defendant to life in
prison.Defendant did not appeal.
December 20, 2010, defendant filed a pro se motion to vacate
his sentence under 28 U.S.C. § 2255. See Motion
Under 28 U.S.C. § 2255 To Vacate, Set Aside Or Correct
Sentence By A Person In Federal Custody (Doc.
#325). Liberally construed, defendant's motion asserted
that (1) the Court should have suppressed the statements of
his co-defendants because officers violated the Fourth
Amendment in obtaining the statements; (2) at sentencing, the
Court erred in calculating his guideline range by considering
his proffer, the statements of his co-defendants and evidence
which officers found at a home that two co-conspirators
rented; and (3) he did not knowingly enter a guilty plea
because the Court did not conduct an adequate plea colloquy.
Id. at 4, 15-27. On July 18, 2011, the Court
overruled defendant's motion and denied a certificate of
appealability. See Memorandum And Order (Doc. #358).
The Court found that the plea agreement's waiver of
collateral challenges barred defendant's claims and that
the claims lacked substantive merit. See id. at
5-10. The Tenth Circuit dismissed defendant's appeal for
failure to prosecute. See Order (Doc. #391) filed
June 8, 2012.
December 4, 2013, defendant filed a Petition For Writ Of
Error Audita Querela To Invalidate Judgement [sic] For Breach
Of Plea (Doc. #417). On December 12, 2013, the Court
overruled defendant's motion. See Memorandum And
Order (Doc. #418). The Tenth Circuit dismissed
defendant's appeal based on the plea agreement's
waiver of appellate rights. See Order (Doc. #427)
filed June 4, 2014.
Tenth Circuit Court of Appeals, defendant sought leave to
file a successive Section 2255 motion to assert a claim based
on newly discovered evidence. Defendant maintained that (1)
counsel failed to advise him that he could enter an open plea
and receive a reduced sentence without cooperating and (2)
counsel promised that he would receive a sentence of ten
years. On May 9, 2017, the Tenth Circuit denied
defendant's request for leave to file a successive
Section 2255 motion. See Order (Doc. #484).
August 7, 2017, defendant filed a motion for relief from
judgment, which the Court construed as a second or successive
Section 2255 motion. Defendant argued that counsel (1)
coerced him to plead guilty by a promise that he would
receive a sentence of 135 months in prison, (2) misinformed
him of his potential sentencing exposure and (3) allowed him
to unknowingly waive his appellate rights. See Motion For
Relief From Judgment (Doc. #486) at 3-12. Defendant also
maintains that at the change of plea hearing, in violation of
Rule 11, the Court allowed defendant to enter a plea under
the mistaken belief that he would receive a sentence within
the range of 135 to 262 months. See id. at 4, 7-8.
On January 24, 2018, the Court dismissed defendant's
motion. See Memorandum And Order (Doc. #487).
Defendant appealed and his appeal remains pending.
March 26, 2018, defendant filed the instant motion to
withdraw his plea. Motion To Withdraw Guilty Plea
Pursuant To Rule 11 (Doc. #494). Defendant maintains
that his plea was invalid under Rule 11, Fed. R. Crim. P.,
because at the change of plea hearing, the prosecution and
the Court erroneously told him that he would receive a
sentence within the range of 135 to 262 months. Id.
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 11, Fed.
R. Crim. 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).
stage, the Court lacks jurisdiction to grant relief under
Rule 11. See Fed. R. Crim. P. 11(e) (after court
imposes sentence, defendant may not withdraw plea of guilty
or nolo contendere, and plea may be set aside only on direct
appeal or collateral attack). Because defendant raised the
issue of the adequacy of the plea proceeding in his original
Section 2255 motion, the Court evaluates defendant's
motion under Rule 60(b) of the Federal Rules of Civil
Procedure. 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 v. Boone, 464 F.3d 1213, 1215-16
(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 petitioner's underlying conviction.”
Id. at 1215.
argues that his plea was invalid under Rule 11 because the
prosecution and the Court erroneously told him that he would
receive a sentence within the range of 135 to 262 months.
Defendant asserts a defect in the “plea proceeding,
” not in the integrity of the prior Section 2255
proceeding. Accordingly, the Court treats his motion as a
second or successive Section 2255 motion. See United
States v. Williams, 790 F.3d 1059, 1068 (10th Cir. 2015)
(motion to withdraw guilty plea fell squarely within
definition of second or successive ...