United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. CRABTREE UNITED STATES DISTRICT JUDGE
matter is before the court on pro se defendant Thomas Guy
Caraway's “Motion to Reopen Closed Case”
under Federal Rule of Civil Procedure 60(b)(3), Federal Rule
of Criminal Procedure 37(a), D. Kan. Rule 7.1, or D. Kan.
Rule 7.6. Doc. 143. For reasons explained below, the court
denies Mr. Caraway's Motion.
April 30, 2007, a jury convicted Mr. Caraway of the
following: (1) causing an explosive device to be delivered by
U.S. Mail, in violation of 18 U.S.C. §§ 1716(a),
1716(j)(2), and 2; and (2) possessing an explosive device
during and in relation to a crime of violence, in violation
of 18 U.S.C. §§ 924(c)(1)(A), 924(c)(1)(B)(ii), and
2. See Doc. 60; Doc. 74 at 1. The court sentenced
Mr. Caraway to 30 years' imprisonment. Doc. 74 at 2. Mr.
Caraway appealed, and the Tenth Circuit affirmed Mr.
Caraway's convictions on July 28, 2008. Doc. 98-1;
see also generally United States v. Caraway, 534
F.3d 1290 (10th Cir. 2008).
October 19, 2009, Mr. Caraway filed his first motion to
vacate his sentence under 28 U.S.C. § 2255. Doc. 100.
The court denied Mr. Caraway's motion on the merits on
September 15, 2010. Doc. 119; see also generally United
States v. Caraway, No. 06-40138-01-RDR, 2010 WL 3721689
(D. Kan. Sept. 15, 2010). The court also denied Mr.
Caraway's request for a certificate of appealability.
Doc. 125. Mr. Caraway appealed, and, on March 30, 2011, the
Tenth Circuit affirmed this court's decision denying his
§ 2255 motion and certificate of appealability. Doc.
128; see also generally United States v. Caraway,
417 Fed.Appx. 828 (10th Cir. 2011). Then, the Supreme Court
denied Mr. Caraway's petition for writ of certiorari on
November 7, 2011, thus ending his first § 2255
challenge. Caraway v. United States, 132 S.Ct. 565
Caraway filed his second § 2255 motion on June 13, 2016.
It argued that the Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2551 (2015),
rendered his sentence “excessive because of the 924(c)
enhancement.” Doc. 133 at 4. The court denied his
motion because it lacked subject matter jurisdiction to
decide it. The court also declined to transfer Mr.
Caraway's second § 2255 motion to the Tenth Circuit
because transfer would not have served the interest of
justice. Doc. 140.
Mr. Caraway has filed a “Motion to Reopen Closed
Case.” Doc. 143. It cites Federal Rule of Civil
Procedure 60(b)(3), Federal Rule of Criminal Procedure 37(a),
and D. Kan. Rules 7.1 and 7.6 as the bases for relief. The
court discusses the arguments he makes in this motion, below.
Caraway cites several rules as ones providing grounds for
bringing his Motion. But three of these rules can provide no
basis for the relief he seeks. First, Fed. R. Crim. P. 37(a)
does not apply to Mr. Caraway's case because that rule
allows a district court to take limited action on a motion
despite having no jurisdiction because of a docketed and
pending appeal. Here, no appeal is docketed or pending before
the Tenth Circuit, so Rule 37 can't apply. Next, Mr.
Caraway cites D. Kan. Rules 7.1 and 7.6. These rules simply
provide requirements for motions, supporting briefs, and
memoranda in civil cases. So, those rules don't provide a
basis for a motion. This conclusion leaves Rule 60(b)(3) as
the last rule cited by Mr. Caraway. The court thus construes
Mr. Caraway's Motion only as a motion made under
60(b)(3) allows the court to relieve a party from a final
judgment based on “fraud (whether previously called
intrinsic or extrinsic), misrepresentation, or misconduct by
an opposing party.” Fed.R.Civ.P. 60(b)(3). But the
court first must consider whether Mr. Caraway's motion
“should be construed as a successive § 2255
motion, ” thus depriving the court of jurisdiction to
decide it. United States v. Baker, No. 06-10129-JTM,
2012 WL 6130285, at *1 (D. Kan. Dec. 10, 2012) (citing
United States v. Nelson, 465 F.3d 1145, 1147 (10th
a postjudgment pleading should be construed as a successive
§ 2255 motion depends on whether the pleading (1) seeks
relief from the conviction or sentence or (2) seeks to
correct an error in the previously conducted habeas
proceeding itself.” Baker, 2012 WL 6130285, at
*1 (citing Nelson, 465 F.3d at 1147). If the
post-judgment pleading argues a “‘new ground for
relief'” from the original judgment, the court
should treat that pleading as a successive § 2255
motion. Id. (quoting Nelson, 465 F.3d at
1147). But if the post-judgment pleading challenges earlier
federal habeas proceedings, the court should not characterize
it as a successive § 2255 motion. Id. (citing
Nelson, 465 F.3d at 1147).
court construes a post-judgment pleading as a successive
§ 2255 motion, the plaintiff first must get approval
from a Tenth Circuit panel to file it. Id. (citing
Nelson, 465 F.3d at 1148-49). Unless the Circuit
approves filing of a successive § 2255 motion, the
district court lacks jurisdiction to decide the motion.
Id. (citing Nelson, 465 F.3d at 1148).
Also, the Tenth Circuit has explained, “[w]hen a second
or successive § 2254 or § 2255 claim is filed in
the district court without the required authorization from
[the Tenth Circuit], the district court may transfer the
matter to [the Circuit] if it determines it is in the
interest of justice to do so under [28 U.S.C.] §
1631.” In re Cline, 531 F.3d 1249, 1252 (10th
Cir. 2008) (citations omitted). Alternatively, the court
“may dismiss the motion or petition for lack of
Caraway's Motion argues that no proper warrant existed
for his arrest. He directs the court to Doc. 9-the warrant
for his arrest. He represents that a United States Deputy
Marshal arrested him around 8:00 a.m. on November 8, 2006, at
his place of employment. But, he asserts, Doc. 9 reports that
the warrant was executed at 11:20 a.m. on November 8, 2006.
Mr. Caraway argues that the Deputy Marshal “falsified
the federal record.” Doc. 143 at 3. Additionally, Mr.
Caraway contends that District Judge John W. Lungstrum never
signed the warrant, rendering it invalid under Federal Rule
of Civil Procedure 4(d) or Federal Rule of Criminal Procedure
9(f). Mr. Caraway concludes that a Deputy Clerk of the Court