United States District Court, D. Kansas
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE.
matter is before the court on defendant Zachary
Fleetwood's motions to vacate his sentence and for
immediate release. (Dkt. 159, 160, 161, 162). Although
presented under different labels, including the All Writs
Act, 28 U.S.C. § 1615 (Dkt. 160) and habeas corpus (Dkt.
159), the relief sought by Fleetwood is the same: he argues
his sentence should be vacated because he should not have
been considered a career criminal based upon prior drug sales
in Kansas, citing the decisions in United States v.
Madkins, 866 F.3d 1136 (10th Cir. 2017), and United
States v. Stumbaugh, 2018 WL 691004 (D. Kan. Feb. 2,
court has previously observed that the proper vehicle for
relief under such circumstances is one for relief under 28
U.S.C. § 2255, and that that statute's restriction
on piecemeal collateral attacks cannot be avoided by the
title given to a defendant's challenge:
Writs under the All Writs Act, 28 U.S.C. § 1651, such as
audita querela and coram nobis are
unavailable to a defendant when other remedies exist such as
a motion to vacate sentence under 28 U.S.C. § 2255.
See United States v. Torres, 282 F.3d 1241, 1245
(10th Cir. 2002). After a defendant has exhausted his direct
appeal in a criminal action, his exclusive remedy for raising
a challenge to his sentence is under Section 2255 unless that
remedy is inadequate or ineffective. See United States v.
McIntyre, 313 Fed.Appx. 160, 162 (10th Cir. 2009);
Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.
1996). Failure to obtain relief under Section 2255 does not
establish that the remedy so provided is either inadequate or
ineffective. Bradshaw, 86 F.3d at 166. Likewise, the
mere fact that a prisoner is precluded from filing a
time-barred or second Section 2255 petition does not
establish that the remedy under Section 2255 is inadequate or
ineffective. United States v. Montano, 442 Fed.Appx.
412, 413 (10th Cir. 2011); Caravalho v. Pugh, 177
F.3d 1177, 1179 (10th Cir. 1999); United States v.
O'Bryant, 162 F.3d 1175, 1998 WL 704673, at *2 (10th
Cir. Oct. 2, 1998); see Patel v. Morris, 37
Fed.Appx. 428, 430-31 (10th Cir. 2002) (allowing claims under
Section 2241 that would be barred under Section 2255 because
remedy “inadequate or ineffective” would allow
prisoners to avoid stringent gatekeeping requirements under
Section 2255; such procedure contrary to statute and
Congressional intent to restrict successive petitions to
extremely limited situations). Finally, a defendant cannot
avoid the bar against successive Section 2255 petitions by
simply styling a petition under a different name.
McIntyre, 313 Fed.Appx. at 162; Torres, 282 F.3d at
1246; see also In re Davenport, 147 F.3d 605, 608
(7th Cir. 1998) (senseless to suppose Congress permitted
prisoners to pass through closed door of Sections 2241 and
2255 by way of All Writs Act simply by changing title of
motions); Triestman v. United States, 124 F.3d 361,
376 (2d Cir. 1997) (if prisoner who is prevented from filing
Section 2255 petition could, without more, establish that
Section 2255 is “inadequate or ineffective” and
entitled to petition under Section 2241(c)(3), Congress would
have accomplished nothing through statutes like AEDPA to
place limits on federal collateral review).
United States v. Gilchrist, 2018 WL 2267703, *2 (D.
Kan. May 17, 2018) (footnote omitted).
undersigned reached the same conclusion in
Stumbaugh, the case relied upon by defendant
Fleetwood, stressing that “a § 2255 motion-not a
writ of audita querela-is the proper remedy for
defendant to challenge his career offender sentencing
enhancement.” See Order, at 3 (citing cases).
Such relief was available to Stumbaugh, the court held,
because “defendant has not previously filed a habeas
motion pursuant to 28 U.S.C. § 2255.” Id.
in contrast, Fleetwood has filed a prior § 2255 motion
for relief, in which he argued that he had been improperly
classified as a career offender in light of Johnson v.
United States, 135 S.Ct. 2551 (2015). Following the
Tenth Circuit's decision in Beckles v. United
States, 137 S.Ct. 886, 890 (2017), the court denied
Fleetwood's first § 2255 motion on May 30, 2017.
to the Antiterrorism and Effective Death Penalty Act of 1996,
defendant may not file a second or successive motion pursuant
to Section 2255 unless he first applies to the appropriate
court of appeals for an order authorizing the district court
to consider the motion. See 28 U.S.C. §§
2244(b)(3), 2255(h). If defendant files a second motion
without first seeking the required authorization, the
district court may transfer the motion to the appellate court
if it determines that it is in the interest of justice
pursuant to 28 U.S.C. § 1631; or dismiss the motion for
lack of jurisdiction. See In re Cline, 531 F.3d
1249, 1252 (10th Cir. 2008). The Court has discretion whether
to transfer or dismiss without prejudice. Trujillo v.
Williams, 465 F.3d 1210, 1222-23 (10th Cir. 2006).
a second § 2255 motion is permissible only if there is
newly discovered evidence that if proven and viewed in light
of the evidence as a whole would establish by clear and
convincing evidence that no reasonable fact finder would have
found defendant guilty of the offense, or there has been a
new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable. 28 U.S.C. § 2255(h).
the defendant has not received authorization from the Tenth
Circuit, and his claims are not premised on either newly
discovered evidence or a new rule of law made retroactive by
the United States Supreme Court. Under these circumstances,
the defendant's claims do not satisfy the authorization
standards under Section 2255, and the Court overrules the
motion rather than transferring it to the Tenth Circuit.
See In re Cline, 531 F.3d at 1252.
court rules adversely to a defendant seeking relief under
§ 2255, under Rule 11 of the Rules Governing Section
2255 Proceedings the court will either grant or deny a
certificate of appealability. A certificate of appealability
may issue only if the applicant has made a substantial
showing of the denial of a constitutional right. 28 U.S.C.
§ 2253(c)(2). A certificate may issue if
“reasonable jurists would find the district court's
assessment of the constitutional claims debatable or
wrong.” Saiz v. Ortiz, 392 F.3d 1166, 1171 n.3
(10th Cir. 2004) (quoting Tennard v. Dretke, 542
U.S. 274, 282 (2004)). As noted above, the defendant's
claim is precluded by the anti-successive motion provisions
of the AEDPA, and accordingly the court denies a certificate
of appealability as to its ruling on defendant's motions.
ACCORDINGLY ORDERED this 23rd day of July, 2018, that
defendant's Motions for Relief (Dkt. 159, 160, 161, 162)
are hereby denied, and that a ...