United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA, UNITED STATES DISTRICT JUDGE.
matter comes before the court upon defendant Ronald Thomas,
Jr.'s pro se “Motion Stating Grounds For Relief
From a Judgment, Order, or Proceeding Pursuant to Federal
Rules of Civil Procedures 60(b)(5) and (6)” (Doc. 106).
Defendant pleaded guilty to violation of 18 U.S.C. §
860(a) and 18 U.S.C. § 2, distributing crack cocaine
within 1, 000 feet of a school, on July 20, 2009. Defendant
was sentenced on July 27, 2010 to 188 months in the custody
of the Bureau of Prisons, followed by six years of supervised
release. Defendant did not file a direct appeal.
29, 2016, defendant filed a Motion to Vacate under 28 U.S.C.
§ 2255, arguing the Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2551 (2015),
created a new and retroactive constitutional rule.
Specifically, defendant argued the sentence enhancement
applied by this court based on his career offender status
under U.S.S.G. § 4B1.2 is unconstitutional after
Johnson because the Supreme Court held a
“violent felony” residual clause is
unconstitutionally vague. This court dismissed that motion on
May 22, 2017 because the United States Supreme Court held the
advisory sentencing guidelines are not subject to vagueness
challenges under the due process clause. Beckles v.
United States, 137 S.Ct. 886, 890 (2017). Thus,
“no new rule or constitutional law provides defendant
an avenue for relief.” (Doc. 105, at 1.) This court
also declined to issue a certificate of appealability for
filed the current motion on February 20, 2018. For the
reasons set forth below, the court determines this is a
second or successive habeas petition under 28 U.S.C. §
2244 and transfers defendant's motion to the Tenth
Circuit for authorization.
argues he is entitled to relief under Rule 60(b) because he
“did not have access to his Texas state documents, and
relied on counsel to determine if his prior felonies
qualified him for the career offender enhancement.”
(Doc. 106, at 1.) He further agues this court erred in
dismissing his prior motion because the Fifth Circuit
determined Texas Penal Code 38.04, Evading Arrest with a
Motor Vehicle, no longer qualifies as a violent crime offense
for purposes of sentence enhancement and because this outcome
is in conflict with the expressed intent of Congress in 28
U.S.C. § 994(h).
Rule 60(b) motions are to be treated as a second or
successive habeas petition. Gonzalez v.
Crosby, 545 U.S. 524 (2005). After Gonzalez,
the Tenth Circuit set forth rules and procedures to determine
if a motion should be treated as a “true” 60(b)
motion or as a second or successive habeas petition.
Spitznas v. Boone, 464 F.3d 1213, 1215 (10th Cir.
2006). District courts must first determine whether the
motion is a true 60(b) motion or a second or successive
petition. Id. at 1216.
Under Gonzalez, a 60(b) motion is 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. Conversely, it is a
“true” 60(b) motion if it either (1) challenges
only a procedural ruling of the habeas court 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.
Id. at 1215-16 (internal citations omitted).
Gonzalez provides examples of motions that should be
treated as second or successive petitions, including motions
arguing a subsequent change in the law requires relief or
motions asserting a constitutional claim the petitioner
failed to include in the prior petition. 545 U.S. at 530-31.
These types of petitions assert or reassert a federal basis
for relief and do not challenge procedural rulings or defects
in the integrity of the habeas proceeding. In the instant
case, defendant's motion falls squarely in this category.
Defendant does not challenge any procedural ruling by this
court or the integrity of the habeas proceeding; rather, he
directly challenges the merits of this court's order
regarding his first habeas petition under 28 U.S.C. §
2255. (See, e.g., Doc. 106, at 6 (“[The] May
2, 2017 Court Order was wrongful application of the law .
. . .”); id. at 9 (“The Court's
limited inquiry into the relevance of [U.S.S.G. §]
4B1.1, was misplaced . . . .”).) This is precisely the
type of challenge the Supreme Court and Tenth Circuit have
instructed district courts to consider second or successive
petitions. See Spitznas, 464 F.3d at 1216
(identifying motions “seek[ing] vindication of a habeas
claim by challenging the habeas court's previous ruling
on the merits of that claim” as second or successive
petitions under Gonzalez).
defendant's motion is, at least in part, one for
ineffective assistance of counsel. (Doc. 106, at 12
(“Until the affiant reviewed the Court records, the
[defendant] was not aware that he had received ineffective
assistance of counsel.”).) Defendant's motion
contains several other indirect references to ineffective
assistance of counsel. (See, e.g., id. at
10 (“However, there is a reasonable probability that
counsel's deficiency undermine[s] confidence in the
outcome. In this case such an error was not readily apparent
to the [defendant], who relied on his Court appointed counsel
to defend him.”).) Defendant argues he was not aware of
the “egregious error” and did not raise these
arguments in his first petition because his “counsel
accepted the ruling of [this court] as final and did not
provide sufficient information that would allow the
[defendant] to proceed further.” (Id. at 10.)
Such references to counsel's alleged errors or omissions
may be construed as asserting an alternative basis for relief
under the Sixth Amendment. But claims asserting a new federal
basis for relief, such as ineffective assistance of counsel,
are also considered second or successive petitions when
brought as Rule 60(b) motions. See Gonzalez, 545
U.S. at 530-31 (2005); see also Spitznas, 464 F.3d
district courts have little power to address second or
successive applications for writs of habeas corpus.
See 28 U.S.C. § 2244; see also
Spitznas, 464 F.3d at 1215. For the reasons stated
above, the court determines this motion is a second or
successive habeas petition. Because this court may not
consider a second or successive habeas petition without prior
authorization from the Tenth Circuit, the court transfers
defendant's motion to the Tenth Circuit for authorization
pursuant to 28 U.S.C. § 2244(b)(3)(A). See
Spitznas, 464 F.3d 1217.
IS THEREFORE ORDERED that defendant's Motion
Stating Grounds For Relief From a Judgment, Order, or
Proceeding Pursuant to Federal Rules of Civil Procedures
60(b)(5) and (6) (Doc. 106) is ...