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United States v. Shelton

United States District Court, D. Kansas

April 3, 2019




         This matter comes before the Court on Michael L. Shelton's Motion to File Successive 28 U.S.C. 2255 (Doc. 85) and Motion to Appoint Counsel (Doc. 86). For the following reasons, the Court dismisses Shelton's successive § 2255 Motion for lack of jurisdiction and denies Shelton's Motion to Appoint Counsel.

         I. Factual and Procedural Background

         In October 2014, Michael Shelton was driving by himself when he was pulled over by law enforcement for speeding. The officer initiating the stop smelled burnt marijuana coming from inside Shelton's vehicle, resulting in a search of the vehicle that revealed methamphetamine, heroin, and a stolen firearm. Based on the findings of the search, Shelton was indicted in federal court on seven counts relating to his possession of drugs, possession of a stolen firearm, and being a felon in possession of a firearm. Pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), Shelton pleaded guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

         After entering his guilty plea but before he was sentenced, Shelton filed a motion withdraw his plea and a motion to suppress. This Court conducted a hearing on Shelton's motions and denied them both. On January 11, 2016, the Court sentenced Shelton to 120 months in prison. The Court's order denying Shelton's motion to withdraw the plea was affirmed on direct appeal by the Tenth Circuit.

         After his unsuccessful direct appeal, Shelton filed a motion to collaterally attack his sentence under 28 U.S.C. § 2255. Specifically, Shelton argued that his sentence was unconstitutional based on the Supreme Court's recent decision in Johnson v. United States, where the Supreme Court struck down part of the Armed Career Criminal Act's (“ACCA”) definition of “violent felony”-the portion known as the residual clause-for being unconstitutionally vague. Shelton argued that his base offense level was erroneously increased based on a provision in the Federal Sentencing Guidelines that mirrors the ACCA's unconstitutional residual clause. Accordingly, Shelton urged the Court to apply Johnson's reasoning to the Federal Sentencing Guidelines and vacate his sentence for being founded on an unconstitutionally vague provision.

         After Shelton filed his § 2255 Motion, the Supreme Court issued its opinion in Beckles v. United States. In that case, the Supreme Court held that the advisory Federal Sentencing Guidelines are not subject to a vagueness challenge under the Due Process Clause. Because Beckles foreclosed the relief Shelton was seeking, this Court dismissed Shelton's § 2255 Motion.

         On May 14, 2018, Shelton filed this Motion in which he requests the Court appoint him counsel “due to the unconstitutional substantive Due Process violations and deprivation of rights, that occur[r]ed and unlawfully enhanced Defendant's sentence . . . .” Shelton also requests “permission to file a successive [§] 2255 since [his] original one was dismissed due to the ruling in Beckles v. United States.” Although Shelton provided a single document with both requests, his document was docketed as two separate motions: a motion to file a successive § 2255 motion and a motion to appoint counsel. The Government argues in response that Shelton is bringing an unauthorized successive § 2255 claim, that his claim is time barred, and that his claim is in violation of his plea agreement, where he waived his right to collaterally attack his sentence.

         II. Legal Standard

         Under 28 U.S.C. § 2255(a),

a prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

         According to Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts,

the judge who receives the motion must properly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion . . . . If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.

         The court must hold an evidentiary hearing on a § 2255 motion “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.”[1] The petitioner must allege facts that, if proven, would warrant relief from his conviction or sentence.[2] An evidentiary hearing is not necessary where a § 2255 motion contains factual allegations that are contradicted by the record, inherently incredible, or when they are conclusions rather than statements of fact.[3]

         III. Analysis

         A. Successive § 2255 Motion

         Shelton is, for the second time, seeking relief under 28 U.S.C. § 2255. Although Shelton entitled his petition as a “Motion for Appointment of Counsel, ” it is the relief sought not the pleading's title that determines whether it is a § 2255 Motion.[4] Shelton is challenging the legality of his sentence under the Fifth and Sixth Amendment and therefore the Court will construe Shelton's Motion as a § 2255 motion. To bring a second or successive § 2255 petition, Shelton must first seek authorization from the Tenth Circuit Court of Appeals.[5] Because Shelton has not received such authorization, this Court lacks jurisdiction to consider Shelton's Motion.[6]

         When a prisoner bringing a § 2255 motion fails to obtain the proper authorization, the Court may-as an alternative to dismissing for lack of jurisdiction-transfer the motion to the Tenth Circuit.[7] A transfer to the Tenth Circuit is appropriate if the Court “determines it is in the interest of justice to do so under [28 U.S.C.] § 1631.” A transfer is not in the interest of ...

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