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United States v. Ford

United States District Court, D. Kansas

August 7, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
WILLIE F. FORD, Defendant.

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE

         On January 23, 2012, the Court sentenced defendant to 420 months in prison. This matter is before the Court on defendant's Motion To Reconsider/Amend Judgment (Doc. #1010) filed March 19, 2019, which the Court construes as a second or successive motion under 28 U.S.C. § 2255. For reasons stated below, the Court dismisses defendant's motion for lack of jurisdiction and denies a certificate of appealability.

         Procedural Background

         On August 26, 2011, a jury found defendant guilty of conspiracy to distribute and possess with intent to distribute more than five kilograms of cocaine and more than 280 grams of cocaine base, maintaining and conspiring to maintain a drug-involved premises within 1000 feet of a school, possession with intent to distribute and distribution of cocaine base within 1000 feet of a school and use of a cell phone in causing or facilitating a drug felony. See Verdict (Doc. #572). Defendant's total offense level was 42 with a criminal history category VI, resulting in a sentencing range of 360 months to life in prison. On January 23, 2012, the Court sentenced defendant to 420 months in prison. See Judgment In A Criminal Case (Doc. #691). Defendant appealed his conviction and sentence. The Tenth Circuit affirmed. Order And Judgment (Doc. #836) filed May 20, 2013 at 2.

         On June 6, 2014, defendant filed a motion to vacate his sentence under Section 2255. Motion Under 28 U.S.C. § 2255 (Doc. #849). In part, defendant alleged ineffective assistance because counsel did not object at trial or sentencing to (1) the failure of the indictment to set forth a specific drug type and quantity or (2) defendant's career offender sentence enhancement under U.S.S.G. § 4B1.1. On May 22, 2015, the Court overruled defendant's Section 2255 motion. See Memorandum And Order (Doc. #889).

         On May 27, 2016, defendant filed a second Section 2255 motion. Motion To Vacate Sentence Under 28 U.S.C. § 2255 (Doc. #914). On May 17, 2017, the Court dismissed defendant's motion because United States v. Beckles, 137 S.Ct. 886 (2017), precluded defendant's claim under Johnson v. United States, 135 S.Ct. 2551 (2015). Order (Doc. #944).

         On November 27, 2017, defendant filed a Motion Pursuant To Rule 60(b) (Doc. #950). In part, defendant asserted that he was entitled to relief because trial counsel provided ineffective assistance by failing to effectively object to his sentence enhancements based on lack of particularized findings. On December 20, 2017, the Court dismissed defendant's Rule 60(b) motion, which the Court construed as a second or successive petition under 28 U.S.C. § 2255. See Memorandum And Order (Doc. #952). On March 21, 2018, the Tenth Circuit denied defendant a certificate of appealability of this Court's ruling on his Rule 60(b) motion. Order Denying Certificate Of Appealability (Doc. #963).

         On April 23, 2018, defendant filed a Motion To Correct/Modification Of Illegal Sentence Or Review Of A Sentence (Doc. #968). In part, defendant argued that trial counsel provided ineffective assistance because (1) he did not propose a jury instruction which required the jury to specifically find drug type and quantity and (2) he did not object to defendant's enhanced sentence based on drug type and quantity. Defendant also argued that the Court erred because it did not instruct the jury to specifically find drug type and quantity and it sentenced him beyond the statutory penalty for the offense of conviction. On April 30, 2018, the Court dismissed defendant's motion, which the Court construed as a second or successive petition under 28 U.S.C. § 2255. See Memorandum And Order (Doc. #970).

         On June 12, 2018, defendant filed a Petition For Writ Of Habeas Corpus By A Person In Federal Custody (28 U.S.C. § 2241) (Doc. #977). Defendant's petition asserted in part that the Court erred because it (1) did not require the jury to specifically find the object of the conspiracy, (2) did not instruct the jury to specifically find drug type and quantity and (3) sentenced him beyond the statutory penalty for the offense of conviction. Defendant's petition also alleged that during plea negotiations, government counsel made misleading statements about his potential statutory penalty. Defendant's petition also asserted that counsel provided ineffective assistance because on appeal, he did not file a motion to stay pending the Supreme Court's ruling in Alleyne v. United States, 570 U.S. 99 (2013). On February 22, 2019, the Court dismissed defendant's motion, which the Court construed as a second or successive petition under 28 U.S.C. § 2255. See Memorandum And Order (Doc. #995).

         On March 19, 2019, defendant filed the instant Motion To Reconsider/Amend Judgment (Doc. #997). Without addressing the above rulings on his post-conviction motions, defendant asks the Court to resentence him. He asserts that the Court (1) did not instruct the jury to specifically find drug type or quantity, or that he committed the offense within 1000 feet of a school, (2) sentenced him beyond the statutory penalty for the offense of conviction and (3) incorrectly enhanced his sentence as an armed career criminal.

         Analysis

         I. Basis For Relief Requested In Defendant's Motion

         Initially, the Court must address how to construe defendant's motion. Defendant's motion has not identified any statutory authority for his request. 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.

         Defendant has not identified any defect in his prior post-conviction proceedings. Instead, defendant asks the Court to resentence him because it (1) did not instruct the jury to specifically find drug type or quantity or that he committed the offense within 1000 feet of a school, (2) sentenced him beyond the statutory penalty for the offense of conviction and (3) incorrectly enhanced his sentence as an armed career criminal. All of defendant's present claims in substance or effect assert or reassert federal grounds for relief from his underlying conviction and sentence. Because defendant has previously sought relief under Section 2255, the Court construes his claims as part of a second or successive Section 2255 motion. See United States v. Wetzel-Sanders, 805 F.3d 1266, 1268 (10th Cir. 2015) (motion which attacks judgment of conviction or sentence when prior motion already did so constitutes second or successive motion); Spitznas, 464 F.3d at 1216 (motions that assert defect outside context of ...


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