Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Hall

United States District Court, D. Kansas

December 14, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
KEVIN TOMMIE HALL, Defendant.

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE

         On 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.

         Procedural Background

         On 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.

         On June 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).

         On 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).

         On June 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.

         On June 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 (2016)).

         Analysis

         I. Basis For Relief Requested In Defendant's Motion

         Defendant 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.

         A. Claim That Court Did Not Rule On All Claims In Initial Section 2255 Motion

         Liberally 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.

         B. Claims Of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.