United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE
October 7, 2008, a jury found defendant guilty of armed bank
robbery (Count 1); using, carrying or brandishing a firearm
during and in relation to a crime of violence (Count 2); and
possession of a firearm by a convicted felon (Count 3). On
June 10, 2009, the Court sentenced defendant to 594 months in
prison. This matter is before the Court on defendant's
Motion For Appointment Of Counsel (Doc. #246) filed
October 29, 2018 and defendant's Rule 60(b) Motion
Revisited [And] Rule 60(b)(6) New Motion (Doc. #245)
filed June 18, 2018, which the Court construes as both a
motion for relief under Rule 60(b)(6), Fed. R. Civ. P., and a
second or successive motion under 28 U.S.C. § 2255. For
reasons stated below, the Court overrules defendant's
motion to appoint counsel and Rule 60(b)(6) motion, dismisses
defendant's Section 2255 motion for lack of jurisdiction,
and denies a certificate of appealability.
October 7, 2008, a jury found defendant guilty of armed bank
robbery; using, carrying or brandishing a firearm during and
in relation to a crime of violence; and possession of a
firearm by a convicted felon. See Verdict (Doc.
#104). Defendant asked for a mistrial because (1) the Court
referred to his specific prior convictions when reading the
indictment to the jury and (2) the evidence was insufficient
for a jury to find him guilty of the charged offenses. The
Court found that the reference to defendant's prior
convictions was not prejudicial because defendant planned to
testify and the Court independently admitted testimony about
his prior offenses. See Memorandum And Order (Doc.
#140) filed June 2, 2009 at 6. In overruling defendant's
argument based on the sufficiency of the evidence, the Court
found that even though the government presented
circumstantial evidence, the evidence was substantial and
overwhelming, and included the following: defendant was
driving a vehicle which matched the description provided by
bank employees; he attempted to elude police by driving for
an extended period at a high rate of speed; during the chase,
he and/or his passenger threw items from the vehicle
including a shotgun (an exact match to the one used during
the bank robbery), clothing items and money (including bank
bait bills); one of the items discarded from the vehicle was
a dark colored ski mask similar to that worn by the bank
robber with DNA matching that of defendant; a Wal-Mart
receipt in the vehicle showed the purchase of a dark colored
ski mask and gloves; video surveillance showed that defendant
and James Morrison had gone to Wal-Mart the night before the
robbery and purchased the mask and gloves; several months
after the government charged defendant, he sent letters to
his former girlfriend and asked her to say that she was with
him at a halfway house in Leavenworth at approximately 2:00
p.m. on November 7, 2006; and defendant's former
girlfriend testified that she was not with defendant that day
at any time. See id. at 7-8.
10, 2009, the Court sentenced defendant to 594 months in
prison. See Judgment In A Criminal Case (Doc. #144).
Defendant's sentence included concurrent terms of 294
months for armed bank robbery under 18 U.S.C. § 2113(a)
(Count 1) and 180 months for possession of a firearm by a
convicted felon under 18 U.S.C. § 922(g) (Count 3), and
a consecutive term of 300 months for using, carrying or
brandishing a firearm during and in relation to a crime of
violence under 18 U.S.C. § 924(c) (Count 2). See
Judgment In A Criminal Case (Doc. #144). The Tenth
Circuit affirmed. See Judgment (Doc. #176).
March 10, 2015, the Court overruled defendant's
Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside,
Or Correct Sentence By A Person In Federal Custody (Doc.
#184) and denied a certificate of appealability. See
Memorandum And Order (Doc. #208). On June 16, 2015, the
Court overruled defendant's Motion For
Reconsideration (Doc. #209). See Memorandum And
Order (Doc. #216). On October 30, 2015, the Tenth
Circuit denied defendant a certificate of appealability of
this Court's ruling on his Section 2255 motion. Order
Denying Certificate Of Appealability (Doc. #232).
29, 2016, in the Tenth Circuit Court of Appeals, defendant
filed a motion for authorization to file a second or
successive Section 2255 motion. Defendant asserted that under
Johnson v. United States, 135 S.Ct. 2551 (2015), (1)
his conviction on Count 2 under 18 U.S.C. § 924(c)
should be vacated because the crime of aiding and abetting
bank robbery is not a “crime of violence” and (2)
his sentence on Counts 1 and 3 should be vacated because his
prior bank robbery convictions no longer qualify as violent
felonies under 18 U.S.C. § 924(e)(1) or crimes of
violence under Section 4B1.1 of the Sentencing Guidelines.
See Motion For Authorization To File A Second Or
Successive Motion To Vacate, Set Aside Or Correct Sentence
Under 28 U.S.C. § 2255 By A Person In Federal
Custody, 10th Cir. No. 16-3214, filed June 29, 2016, at
8-9, 13-14. Defendant's motion for authorization remains
pending before the Tenth Circuit.
18, 2018, defendant filed the instant Rule 60(b) Motion
Revisited [And] Rule 60(b)(6) New Motion (Doc. #245).
Defendant argues that in ruling on his motion to vacate
sentence, the Court failed to rule on one of his claims
related to the aiding and abetting instruction and general
verdict form. See id. at 2-5 (citing Rosemond v.
United States, 572 U.S. 65 (2014)). Defendant also
asserts that at sentencing, the Court erroneously classified
him as a career offender under 18 U.S.C. § 924(e)(1) and
Section 4B1.1 of the Sentencing Guidelines. See id.
at 6-7 (citing Moncrieffe v. Holder, 569 U.S. 184
(2013) and Mathis v. United States, 136 S.Ct. 2243
Basis For Relief Requested In Defendant's Motion
purportedly seeks relief under Rule 60(b) of the Federal
Rules of Civil Procedure. The relief sought B not a
motion's title B determines whether a movant filed a true
Rule 60(b) motion or an unauthorized second or successive
petition under Section 2255. United States v.
Nelson, 465 F.3d 1145, 1149 (10th Cir. 2006); see
also United States v. Torres, 282 F.3d 1241, 1242, 1246
(10th Cir. 2002) (allowing petitioner to avoid bar against
successive petitions by styling petition under different name
would erode procedural restraints of Sections 2244(b)(3) and
2255). A true Rule 60(b) motion (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
proceedings, 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, 1224-25 (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 1225. When determining the
nature of a motion, the Court considers each issue in the
motion to determine whether it represents a successive
petition, a Rule 60(b) motion, or a “mixed”
motion. Id. at 1224.
Claim That Court Did Not Rule On All Claims In Initial
Section 2255 Motion
construed, defendant's motion asserts that the Court
failed to rule on his claim that the aiding and abetting
instruction and general verdict form were erroneous for the
reasons the Supreme Court set forth in Rosemond,
supra. Because defendant's first claim asserts
that the Court failed to rule on one of his claims presented
in the original habeas petition, the Court treats the claim
as part of a “true” Rule 60(b) motion.
Spitznas, 464 F.3d at 1225.
Claims Of ...