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United States v. McIntosh

United States District Court, D. Kansas

December 28, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
RODNEY O. MCINTOSH, Defendant.

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE.

         On December 12, 2012, a jury found defendant guilty of eight counts of forcible assault. On June 18, 2013, the Court sentenced defendant to 144 months in prison. This matter is before the Court on defendant's [Motion For] Writ Of Mandamus Pursuant To 28 U.S.C. § 1361 (Doc. #312) filed June 15, 2018 and defendant's Motion For Relief Under Federal Rules Of Civil Procedure 60(b) (Doc. #313) filed June 15, 2018, which the Court construes as both a motion for relief under Rule 60(b), 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 Rule 60(b) motion, dismisses for lack of jurisdiction defendant's motion for writ of mandamus and Section 2255 motion, and denies a certificate of appealability.

         Factual Background

         On October 6, 2011, a grand jury charged Rodney McIntosh with nine counts of forcible assault against Bureau of Prisons (“BOP”) employees in violation of 18 U.S.C. § 111(a)(1). See Indictment (Doc. #1). Each count pertained to different incidents involving various BOP employees.

         After a seven-day trial, a jury found defendant not guilty on Count 1 and guilty on Counts 2 through 9. On June 18, 2013, defendant proceeded pro se at sentencing. Defendant's total offense level was 20, with a criminal history category VI, resulting in a guideline range of 70 to 87 months in prison. The statutory penalty under each count did not include a minimum term but included a maximum term of eight years in prison. See 18 U.S.C. § 111(a)(1). The Court sentenced defendant to a total term of 144 months (12 years) in prison. The term of imprisonment consisted of 96 months (8 years) on each of Counts 2 through 8, to be served concurrently, and 96 months (8 years) on Count 9, of which 48 months would be served consecutively to the other counts and 48 months would be served concurrently with the other counts.

         Defendant appealed. On appeal, defendant argued that the Court erred in overruling his motion to dismiss and that his sentence was procedurally and substantively unreasonable. On July 30, 2014, the Tenth Circuit affirmed. See United States v. McIntosh, 573 Fed.Appx. 760 (10th Cir. 2014). On December 8, 2014, the Supreme Court denied defendant's petition for a writ of certiorari. See United States v. McIntosh, 135 S.Ct. 768 (2014).

         On August 5, 2016, the Court overruled defendant's initial Section 2255 motion and numerous related motions. See Memorandum And Order (Doc. #242). On January 24, 2017, the Tenth Circuit denied a certificate of appealability and dismissed defendant's appeal. See Order Denying Certificate Of Appealability And Dismissing Appeal (Doc. #259).

         On April 17, 2018, the Court overruled defendant's request for return of legal materials which the government retained after his sentencing hearing and dismissed his motion for a writ of mandamus to compel the government to return the materials. See Memorandum And Order (Doc. #303).

         On four occasions this year, the Tenth Circuit has denied defendant authorization to file a second or successive Section 2255 motion. See In re McIntosh, No. 18-3102 (10th Cir. May 30, 2018) (unpublished order); In re McIntosh, No. 18-3077 (10th Cir. Apr. 24, 2018) (unpublished order); In re McIntosh, No. 18-3031 (10th Cir. Mar. 12, 2018) (unpublished order); In re McIntosh, No. 18-3006 (10th Cir. Jan. 25, 2018) (unpublished order).

         On June 15, 2018, defendant filed the instant motions. Defendant renews his request to compel the government to return his legal materials which the government retained after his sentencing hearing. [Motion For] Writ Of Mandamus Pursuant To 28 U.S.C. § 1361 (Doc. #312) at 1-2. Defendant also argues that in ruling on his Section 2255 motion, the Court committed three procedural errors: (1) it did not hold an evidentiary hearing; (2) it did not expand the record before ruling on his motion; and (3) it overruled claims of judicial error based on defendant's failure to raise the issues on direct appeal. Motion For Relief Under Federal Rules Of Civil Procedure 60(b) (Doc. #313) at 1-3.

         Analysis

         I. Motion For Writ Of Mandamus (Doc. #312)

         After trial but before sentencing, the Court allowed defendant to proceed pro se. At that time, defendant was incarcerated at Corrections Corporation of America (“CCA”) in Leavenworth, Kansas. After defendant apparently attempted to send discovery materials to third parties, the government filed a motion to prohibit defendant from disseminating discovery to any other person. United States' Motion For Order Governing Dissemination Of Discovery By Defendant (Doc. #136) filed May 17, 2013. The government also asked that after sentencing, defendant return all discovery materials to CCA personnel so that CCA could return the materials to the government. Id. at 4. At sentencing, government counsel informed the Court that (1) the discovery materials appeared to be in the courtroom so the requested order might not be necessary and (2) after sentencing, the government intended to instruct CCA not to make discovery available to defendant. Transcript Of Sentencing (Doc. #191) at 275-76. Government counsel noted that if defendant appealed and the Tenth Circuit appointed counsel, the government could address the issue of access to discovery materials through counsel. Id. at 276. Accordingly, the Court overruled the government's motion as moot.

         As noted, on April 17, 2018, the Court overruled defendant's request for return of legal materials which the government retained at the sentencing hearing and dismissed his motion for a writ of mandamus to compel the government to return the materials. See Memorandum And Order (Doc. #303). Defendant has renewed his request for a writ of mandamus based on his repeated assertion that the legal materials show his innocence. [Motion For] Writ Of Mandamus Pursuant To 28 U.S.C. § 1361 (Doc. #312) at 1-2.

         Defendant seeks relief under 28 U.S.C. § 1361, which bestows original jurisdiction upon district courts for mandamus actions “to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. As noted in the prior order, defendant has not shown that the government had a nondiscretionary duty to return anything to him or that other remedies are not available. See Memorandum And Order (Doc. #303) at 2. Accordingly, the Court dismisses for lack of jurisdiction defendant's motion for a writ of mandamus. See Marquez-Ramos v. Reno, 69 F.3d 477, 479 (10th Cir. 1995) (whether particular act discretionary or ministerial rises to jurisdictional level); Carpet, Linoleum & Resilient Tile Layers v. Brown, 656 F.2d 564, 567 (10th Cir. 1981) (test for jurisdiction is whether mandamus would be appropriate means of relief); see also Heckler v. Ringer, 466 U.S. 602, 616 (1984) (writ of mandamus intended to provide remedy only where petitioner exhausted other avenues of relief and defendant owes him clear nondiscretionary duty).[1]

         II. Basis For Relief Requested In Defendant's Rule ...


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