United States District Court, D. Kansas
MEMORANDUM & ORDER
W. LUNGSTRUM UNITED STATES DISTRICT JUDGE.
2009, defendant Yehia Hassen, pursuant to a plea agreement
with the government, entered a plea of guilty to conspiracy
to distribute and possession with intent to distribute 1000
kilograms or more of marijuana and 5 kilograms or more of
cocaine and attempted money laundering. Under the terms of
the plea agreement, Mr. Hassen anticipated a guideline range
of 210-262 months (corresponding to a criminal history
category of I and a total offense level of 37) but understood
that the government would recommend the low end of the range
and would file a § 5K1.1 motion if he met the
cooperation requirements. Following Mr. Hassen's guilty
plea, he remained out-of-custody on conditions of release. On
March 29, 2010, the day of Mr. Hassen's scheduled
sentencing, the government filed a § 5K1.1 motion
seeking a one-level reduction in Mr. Hassen's total
offense level and, consistent with the plea agreement,
recommended a sentence of 188 months, the low-end of the
resulting guideline range. Mr. Hassen failed to appear for
sentencing and an arrest warrant was issued by the court. At
that time, the government withdrew its § 5K1.1 motion.
Mr. Hassen remained a fugitive until he was arrested in the
Republic of Cyprus in April 2016. He waived extradition and
was transported back to the United States.
August 2016, the government filed a motion for a hearing to
determine whether Mr. Hassen breached the plea agreement by
failing to appear for sentencing and then absconding for six
years. By filing the motion, the government sought to request
a sentence other than the low-end of the guideline range, to
request that Mr. Hassen not receive a reduction for
acceptance of responsibility and to request an upward
departure from the applicable guideline range. At the same
time, Mr. Hassen, through new counsel, filed a motion to
withdraw from the plea agreement based upon ineffective
assistance of counsel; to withdraw from the plea agreement
because he did not enter that agreement knowingly and
voluntarily; and to find that the government's one-level
§ 5K1.1 motion was made in bad faith. On September 15
and September 23, 2016, this court held an evidentiary
hearing on the parties' motions. After that hearing, the
court granted the government's motion and denied Mr.
Hassen's motion. On November 22, 2016, the court
sentenced Mr. Hassen to 324 months imprisonment. Mr. Hassen
then filed a motion to vacate, set aside or correct his
sentence pursuant to 28 U.S.C. § 2255, asserting four
claims of ineffective assistance of counsel and one claim of
prosecutorial misconduct. In February 2019, this court issued
a memorandum and order denying each of Mr. Hassen's
§ 2255 claims, denying Mr. Hassen's request for an
evidentiary hearing, and denying a certificate of
appealability on his claims. This matter is now before the
court on Mr. Hassen's motion to alter or amend judgment
pursuant to Rule 59(e) or, in the alternative, for a
certificate of appealability (doc. 1116).
be explained, the motion is denied in part and dismissed in
part. To the extent the motion is a true Rule 59(e) motion,
it is denied because Mr. Hassen has not demonstrated any of
the well-established grounds warranting relief under Rule
59(e): “(1) an intervening change in the controlling
law, (2) new evidence previously unavailable, and (3) the
need to correct clear error or prevent manifest
injustice.” Servants of Paraclete v. Does, 204
F.3d 1005, 1012 (10th Cir. 2000). To the extent the motion is
a successive § 2255 petition, it is dismissed because
the court lacks jurisdiction over it. In re Cline,
531 F.3d 1249, 1251 (10th Cir. 2008).
response to Mr. Hassen's motion, the government asserts
that it amounts to a subsequent or successive § 2255
motion such that this court lacks jurisdiction to resolve it.
A prisoner may not file a second or successive § 2255
motion unless he first obtains an order from the circuit
court authorizing the district court to consider the motion.
28 U.S.C. § 2244(b)(3)(A); id. § 2255(h).
Absent such authorization, a district court lacks
jurisdiction to address the merits of a second or successive
§ 2255 motion. In re Cline, 531 F.3d at 1251.
While Mr. Hassen has labelled his motion a “Rule
59(e)” motion, the court first considers “whether
it is truly such a motion, in whole or in part, or, in
reality, a second or successive § 2255 motion.”
United States v. Norwood, 557 Fed.Appx. 798, 801
(10th Cir. Mar. 7, 2014).
59(e) motion should be treated as a second or successive
§ 2255 motion “if it in substance or effect
asserts or reasserts a federal basis for relief from the
petitioner's underlying conviction.” Spitznas
v. Boone, 464 F.3d 1213, 1215 (10th Cir. 2006); see
Gonzalez v. Crosby, 545 U.S. 524, 532 (2005).
“Conversely, it is a ‘true' [59(e)] motion if
it either (1) challenges only a procedural ruling of the
habeas court which precluded a merits determination of the
habeas application . . .; or (2) challenges a defect in the
integrity of the federal habeas proceeding, provided that
such challenge does not itself lead inextricably to a
merits-based attack on the disposition of a prior habeas
petition.” Spitznas, 464 F.3d at 1216;
United States v. Pedraza, 466 F.3d 932, 933 (10th
Cir. 2006) (“Rule 59(e) motions are subject to the same
characterization.”); United States v. Cobb,
307 Fed.Appx. 143, 145 (10th Cir. 2009) (unpublished)
(observing, in § 2255 proceeding, that
Spitznas's reasoning underlying COA requirement
for appeal of Rule 60(b) ruling “applies equally to
motions under Rule 59(e)”).
court discerns three arguments in Mr. Hassen's motion
that attack the integrity of the habeas proceeding without
leading to an attack on the merits of the disposition of the
petition- that the court, in denying a hearing and denying a
COA, utilized an incorrect standard that placed too heavy a
burden on Mr. Hassen; that the court applied the wrong
standard in assessing prejudice under Strickland;
and that the court applied the wrong standard in analyzing
Mr. Hassen's claim of prosecutorial misconduct. See
Melter v. United States, 2017 WL 3868808, at *1-2 (W.D.
Penn. Sept. 5, 2017) (argument that district court denied COA
based on incorrect standard was appropriately considered
under Rule 60(b)); Copeland v. McNeil, 2009 WL
1229042, at *2 (N.D. Fla. May 4, 2009) (argument that court
used the wrong standard of review in determining that habeas
petition was untimely was a true Rule 60(b) motion). The
remainder of the motion seeks to collaterally attack Mr.
Hassen's conviction and, because that aspect of the
motion constitutes an unauthorized successive § 2255,
the court lacks jurisdiction to consider it.
Hassen's first argument is that the court, in denying a
hearing and denying a COA, held Mr. Hassen to a high burden
not supported in the case law. Specifically, Mr. Hassen
asserts that his pleadings alone are sufficient to warrant a
hearing, but the court erroneously held without the benefit
of a hearing that Mr. Hassen “failed to
establish” his claims at the motion stage. In other
words, Mr. Hassen asserts that the court required him to
“prove” his claims on paper without an
evidentiary hearing. As will be explained, the court denied
Mr. Hassen's claims under the applicable standard. The
use of the word “establish” was and is consistent
with general usage in the case law.
the motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief, the court
shall . . . grant a prompt hearing thereon, determine the
issues and make findings of fact and conclusions of law with
respect thereto. . . .” 28 U.S.C. § 2255(b).
Accordingly, “[r]eview in a section 2255 habeas action
entails a two-step inquiry: (1) whether the defendant is
entitled to relief if his allegations are proved; and (2)
whether the district court abused its discretion by refusing
to grant an evidentiary hearing.” United States v.
Weeks, 653 F.3d 1188, 1200 (10th Cir. 2011). But
conclusory allegations alone, without supporting factual
averments, are insufficient to state a valid claim under
§ 2255 and impose no obligation on the district court to
conduct an evidentiary hearing. See United States v.
Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994);
Anderson v. United States, 367 F.2d 553-54 (10th
court's use of the phrase “failed to
establish” was based on the court's conclusion that
Mr. Hassen had not shown that his non-conclusory allegations,
if true, would entitle him to relief. See United States
v. Clark, 650 Fed.Appx. 569, 572-73 (10th Cir. 2016)
(petitioner “failed to establish” prejudice on
his claim that plea counsel failed to explain that he could
enter straight plea where defendant “had not shown a
reasonable probability that he would have pleaded
guilty”; no hearing required); United States v.
Moreno, 655 Fed.Appx. 708, 713 (10th Cir. 2016)
(district court correctly held that petitioner “failed
to establish a reasonable probability” that the result
of trial would have been different but for counsel's
performance; no hearing required); United States
v. Wolf, 650 Fed.Appx. 556 (10th Cir. 2016)
(district court correctly held that petitioner “failed
to establish” prejudice and no evidentiary hearing was
required). By way of example, Mr. Hassen asserted in his
petition that a hearing was required regarding his allegation
that his plea counsel failed to tell him that he was eligible
for a “safety valve” reduction. But the court
assumed for purposes of the motion that plea counsel failed
to advise Mr. Hassen about “safety valve” relief
and denied the claim in any event because there was no
showing that Mr. Hassen was eligible for such relief. See
doc. 1112 at 7. Similarly, Mr. Hassen alleged that his plea
counsel told him that if he did not sign the plea agreement
and cooperate, he would go to prison for the rest of his
life. The court held that, even assuming that plea counsel
provided such advice, there was no showing of prejudice
because there was no evidence that such advice was anything
other than a good-faith estimate. See id.
Mr. Hassen asserts that the court applied the wrong standard
in assessing whether he had shown prejudice in connection
with his counsel's assistance at the plea stage.
Specifically, Mr. Hassen challenges the court's
conclusion that he could not establish prejudice because he
would have received a longer sentence if he had gone to
trial. According to Mr. Hassen, the correct standard is
whether he would have changed his decision to plead guilty
and he asserts that he would not have entered a plea of
guilty despite the possibility of a longer sentence after
trial. Significantly, the court's statements about the
likelihood of a longer sentence if Mr. Hassen had gone to
trial were simply to support the court's holding that Mr.
Hassen could not show in the first instance that he would
have changed his plea and insisted on a trial. At the hearing
on Mr. Hassen's motion to withdraw from the plea
agreement, Mr. Hassen swore under oath that he was guilty of
the crimes charged; that he “wasn't trying to say I
wasn't guilty;” and that he was asking for the
court to leave the guilty plea in place. This testimony is
consistent with Mr. Hassen's declaration that he filed in
support of his reply brief in support of his § 2255
motion. In his declaration, he insists that he would not have
signed the plea agreement but does not state that he would
have changed his plea of guilty. Because Mr. Hassen failed to
even allege that he would have insisted on going to trial but
for counsel's alleged ineffectiveness, the court found no
prejudice under Strickland. The court, then, did not
apply the wrong standard in assessing the prejudice prong of
Mr. Hassen asserts that the court applied the wrong standard
in evaluating his claim of prosecutorial misconduct.
According to Mr. Hassen, the court required him to show some
“invidious reason” for the prosecution's
conduct, not simply bad faith. This argument mischaracterizes
the court's memorandum and order. In its order, the court
identified the standard espoused by the Court in Wade v.
United States, 504 U.S. 181 (1992)-that the defendant
must show that the government's decision was “based
on an unconstitutional motive or was not rationally related
to any legitimate Government end.” Expressly applying
that standard, the court held that Mr. Hassen's claim for
relief necessarily failed for lack of evidence demonstrating
that the government's one-level departure motion was
“unconstitutionally motivated or that it was not
rationally related to any legitimate government end.”
The court then, in dicta, reiterated its statements from the
hearing on Mr. Hassen's motion to withdraw his plea,
including the statement that “There has to be some
invidious reason not just some prosecutorial exercise of
judgment about how things are going to proceed.”
“Invidious reason” is, in fact, accurate
shorthand for an “unconstitutional motive” or a
decision “not rationally related to any legitimate
government end.” Nonetheless, in analyzing Mr.
Hassen's § 2255 claim the court did not require Mr.
Hassen to show an “invidious” reason for the
government's conduct beyond the Wade standard.
The argument is rejected.
remainder of Mr. Hassen's arguments constitute a rehash
of the arguments he made in his initial § 2255 motion.
See Gonzalez v. Crosby, 545 U.S. 524, 534 (2005)
(“[A] Rule 60(b) motion that seeks to revisit the
federal court's denial of the merits of a claim for
relief should be treated as a successive habeas
petition.”). These aspects of the motion are dismissed
for lack of jurisdiction.
Mr. Hassen's motion is denied with prejudice as to his
arguments that the court applied the wrong standards in
analyzing his initial petition and is otherwise dismissed
without prejudice for lack of jurisdiction. Further, because
jurists of reason would not find debatable the court's
disposition of the motion, construed in part as a true Rule
59(e) motion and in part as a second or second successive