United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. SKAVDAHL United States District Judge
matter is before the Court on defendant's letter (ECF No.
1115), which the Court construes as a second or successive
motion under 28 U.S.C. § 2255. For reasons stated below,
the Court dismisses defendant's motion and denies a
certificate of appealability.
15, 2014, the undersigned judge, sitting by designation,
sentenced Mr. Mays to 225 months in prison. See Judgment
In A Criminal Case (ECF No. 719) at 2-3. Defendant's
sentence of 225 months reflects a credit of 22 months for
time that he spent in custody on a state sentence that was
relevant conduct in this federal case. Transcript Of
Sentencing Proceedings (ECF No. 785) at 181 (court
noting “sentence in the instant case is being adjusted
downward approximately 22 months pursuant to
5G1.3(b)”); Presentence Investigation Report
(ECF No. 679) ¶ 130 (noting that Section 5G1.3 may apply
to undischarged term of imprisonment imposed in state court
on August 23, 2012); see U.S.S.G. § 5G1.3(b)(1)
(court shall adjust sentence for period of imprisonment
already served on undischarged term of imprisonment on
another offense that is relevant conduct for instant offense
if court determines that BOP will not credit such period to
April 8, 2015, the Tenth Circuit affirmed defendant's
sentence. See Order And Judgment (ECF No.
927). On August 24, 2015, under Amendment 782 to the
Sentencing Guidelines, which reduced by two levels
defendant's base offense level, the Honorable Kathryn H.
Vratil reduced defendant's sentence to 180 months.
See Order Regarding Motion For Sentence Reduction
Pursuant To 18 U.S.C. § 3582(c)(2) (ECF No. 943).
November 14, 2018, the Court overruled defendant's first
motion to vacate his sentence under 28 U.S.C. § 2255.
See Memorandum And Order (ECF No. 1114).
December 7, 2018, Mr. Mays filed the instant motion.
Mays asserts that his initial sentence of 225 months did not
reflect any credit for the time that he served in custody on
his state sentence, which was before sentencing in this case.
ECF No. 1115 at 1. Because Mr. Mays attacks the validity of
his sentence, the Court has construed his motion as a
successive one under 28 U.S.C. § 2255. See United
States v. Wetzel-Sanders, 805 F.3d 1266, 1268 (10th Cir.
2015) (motion which attacks judgment of conviction or
sentence when prior motion already did so constitutes second
or successive motion).
federal prisoner wishing to file a second or successive
Section 2255 motion must first receive certification from the
court of appeals authorizing this Court to consider such a
motion. See 28 U.S.C. §§ 2255(h) and
2244(b)(3)(A); see also United States v.
Garcia-Rodriguez, 516 Fed.Appx. 704, 706 (10th Cir.
2013) (§ 2255 motion is “second or
successive” if a prior § 2255 motion raised claims
regarding same conviction or sentence and was decided on the
merits). Absent the required authorization, this Court has no
jurisdiction to consider a defendant's second or
successive Section 2255 motion. See In re Cline, 531
F.3d 1249, 1251 (10th Cir. 2008).
second or successive Section 2255 motion is filed in the
district court without the required authorization from the
court of appeals, the district court may either dismiss the
motion for lack of jurisdiction or transfer the matter to the
court of appeals if it determines it is in the interest of
justice to do so under 28 U.S.C. § 1631. Id. at
1252. Where a defendant's papers are plainly insufficient
for certification under Section 2255(h), it is appropriate
for the district court to decline a transfer of the motion to
the court of appeals and simply dismiss the matter.
second or successive motion under 28 U.S.C. § 2255 may
be filed in the district court if the court of appeals
certifies that the motion is based on (1) 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 (2) 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.
Mays has not presented any arguable factual or legal basis to
satisfy the gatekeeping requirements for a successive Section
2255 motion. Accordingly, the Court dismisses defendant's
motion, as it would not be in the interest of justice to
transfer the matter to the Tenth Circuit Court of Appeals.
See In re Cline, 531 F.3d at 1252 (citing
Phillips v. Seiter, 173 F.3d 609, 610 (7th Cir.
1999) (waste of judicial resources to transfer ...