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United States v. Fisher

United States District Court, D. Kansas

June 12, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
STACY L. FISHER, Defendant.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN UNITED STATES DISTRICT JUDGE

         In 2014, Defendant Stacy L. Fisher pleaded guilty to one count of felon in possession of a firearm and received a sentence with a prison term of 86 months, to be followed by three years of supervised release. Fisher filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 on June 19, 2017. Because Fisher waived his right to collaterally attack his sentence, the Court denied his motion on January 25, 2018. Fisher filed a motion for reconsideration pursuant to Fed.R.Civ.P. Rule 59(e) on February 26, 2018, arguing that the Court committed legal error in denying his § 2255 motion and in declining to issue a certificate of appealability. He subsequently filed a Motion for Default Summary Judgment seeking judgment in his favor on his motion for reconsideration. For the reasons stated below, the Court denies Fisher's motions for reconsideration (Doc. 89) and default summary judgment (Doc. 93).

         I. Factual and Procedural Background [1]

         In 2013, Fisher was charged in a five-count indictment of unlawfully and knowingly possessing, with the intent to distribute, cocaine base (crack cocaine), of knowingly and unlawfully possessing a Ruger .22 caliber semi-automatic handgun, a Winchester 16-gauge shotgun, and ammunition, and of knowingly possessing a firearm in furtherance of a drug trafficking crime. On July 3, 2014, Fisher pleaded guilty to one count of felon in possession of a firearm and entered into a plea agreement with the Government.

         Fisher acknowledged that he entered the plea agreement “freely and voluntarily, ” and agreed to waive his rights to appeal and to collaterally attack his sentence. The parties requested that the Court apply the U.S. Sentencing Guidelines (“Guidelines”) to calculate Fisher's sentence, and the parties agreed “to request a sentence within the guideline range determined to be appropriate by the U.S. Probation Department.” The Court confirmed that Fisher understood that he was requesting a sentence within the Guidelines range, and that he was waiving any objections or challenges he had to the Guidelines process. The Court explained Fisher's appeal rights, including his right to appeal his sentence or how his sentence was calculated. Fisher stated that he understood that he was essentially waiving his appeal rights, except to the extent he received a sentence above the Guidelines range or in the event the Government filed an appeal. The Court found that Fisher made his plea freely, voluntarily, and because he was guilty as charged, and not out of ignorance, fear, inadvertence, or coercion, but with a full understanding of the consequences.

         After Fisher pleaded guilty, a U.S. Probation Officer (“USPO”) prepared a presentence investigation report (“PSR”) and submitted it to the Court on September 2, 2014. The PSR identified the applicable Guidelines range for imprisonment as 77 months to 96 months. The Court adopted this range, and on September 23, 2014, sentenced Fisher to a prison term of 86 months, to be followed by three years of supervised release.

         Proceeding pro se, Fisher filed a motion under 28 U.S.C. § 2255 on June 19, 2017, arguing that in light of two U.S. Supreme Court[2] cases addressing statutory interpretation of the Guidelines, his prior Kansas conviction should not have been considered a “controlled substance offense” for purposes of calculating his total offense level, and that his total offense level should have been six levels lower, resulting in a lower Guidelines range. The Court held that Fisher had waived his right to collaterally attack his sentence, which fell within the recommended sentencing range. Fisher filed a “motion for reconsideration” of the Court's order denying his motion to vacate, as well as a “motion for default summary judgment.”[3]

         II. Legal Standards

         When a habeas petitioner files a Rule 59(e) motion, “the court must first examine whether the motion is a true motion to alter or amend judgment, ” or whether it is actually a second or successive petition.[4] If the motion “challenges one of the court's procedural rulings that precluded resolution of the habeas petition on its merits” or “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, ' ” then it will be treated as a Rule 59(e) motion.[5] It the motion is “mixed, ” the Court will treat the Rule 59(e) portions as such, and the second or successive § 2255 motion as such.

         Under Fed.R.Civ.P. 59(e), a party may file a motion to alter or amend a judgment within 28 days after entry of the judgment. “Grounds warranting a motion to reconsider include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice.”[6] Accordingly, “a motion for reconsideration is appropriate where the court has misapprehended the facts, a party's position, or the controlling law. It is not appropriate to revisit issues already addressed or advance arguments that could have been raised in prior briefing.”[7] A purported Rule 59(e) “motion that ‘in substance or effect asserts or reasserts a federal basis for relief from the petitioner's underlying conviction' is actually a second or successive” § 2255 motion.[8]

         Under 28 U.S.C. § 2255, a “prisoner in custody . . . claiming the right to be released” may petition the court to vacate, set aside, or correct a sentence on various grounds, including where “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.”[9] A litigant seeking to pursue a second or successive motion under § 2255 must have permission from the Tenth Circuit to do so, and must show either “(1) newly discovered evidence that . . . would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law . . . that was previously unavailable.”[10]

         III. Analysis

         Fisher's motion for reconsideration asserts the following arguments: (1) he received ineffective assistance of counsel due to his counsel's failure to object to the calculation of his sentence under the Guidelines, (2) his Due Process rights were violated when the Court improperly calculated his sentence, (3) the plea agreement's waiver of his rights to collaterally attack his sentence was unlawful because it was entered into before the alleged sentence calculation, (4) the Court committed legal error when it found that no miscarriage of justice existed concerning the validity of the plea waiver, and (5) the Court committed legal error when it refused to issue a certificate of appealability.

         The first three issues merely rehash arguments previously made in Fisher's motion to vacate[11] or constitute new arguments not previously asserted.[12] When a motion for reconsideration reasserts prior legal arguments or raises new grounds for relief attacking the petitioner's incarceration, it is not a motion for reconsideration, but rather a successive motion to vacate, set aside, or correct a sentence under § 2255.[13] “It is the relief sought, not his pleading's title, that determines whether the pleading is a § 2255 motion.”[14] Fisher has neither sought nor received permission to file a second or successive § 2255 motion on these grounds; nor does he satisfy the requirements allowing him to receive authorization as he does not identify a change in the controlling law since filing his first § 2255 motion and does not present new evidence previously unavailable. Accordingly, ...


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