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United States v. Hutcherson

United States District Court, D. Kansas

August 23, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
TYRONE LUVOID HUTCHERSON, Defendant.

          MEMORANDUM AND ORDER

          HOLLY L. TEETER, UNITED STATES DISTRICT JUDGE

         In the late nineties, Defendant pleaded guilty to possession with the intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a) and use of a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. 924(c). Doc. 47 at 1. Defendant now moves the Court pro se[1] to correct this sentence, arguing that an unnamed 2018 United States Supreme Court case “ruled [the] 924(c) sentence[] unconstitutional” for two reasons. Doc. 74. Because this motion is Defendant's second habeas petition and the circuit court has not certified it (and because the motion is otherwise meritless), the Court finds it lacks jurisdiction and dismisses the motion.

         I. BACKGROUND

         In 1998, Defendant pleaded guilty to two counts in a six-count Indictment: (1) possession with the intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a) and (2) use of a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. 924(c). Doc. 47 at 1. The United States District Court for the District of Kanas sentenced Defendant to a controlling term of imprisonment of 138 months. Id. at 2.

         Within a year, Defendant filed a motion pursuant to 28 U.S.C. § 2255 arguing that his convictions must be vacated on grounds that he (1) never carried a firearm, (2) he was being subjected to cruel and unusual punishment, and (3) that he was improperly denied jail credit. Doc. 55 at 1-2. The Court denied the motion, [2] and Defendant did not appeal. Id. at 4.

         After completing his sentence in 2008 and being released, Defendant was convicted in Texas for two counts of bank robbery. United States v. Hutcherson et al., No. 2:08-cr-00044-D, N.D. Tx., Doc. 123 at 1. He was sentenced in January 2010 to 240 months' imprisonment. Id. at 2.

         Over nine years later, on May 16, 2019, Defendant filed the instant single-page motion and asks the Court to correct his Kansas sentence. He argues:

In 2018 the United States Supreme Court ruled [18 U.S.C.] 924(c) sentenced unconstitutional based on wording within the guidelines and the stacking of the sentences.

         Doc. 74 at 1. Based on this argument, he requests that “the sentencing court to correct the record that remains standing to eliminate further unjust from enhancements in this future” and further requests “the court award the served 60 months toward his post release suspension of 36 months on said sentence a correction of this request would uphold justice in its fairness.” Id.

         II. ANALYSIS

         The Government opposes Defendant's motion and argues that the Court lacks jurisdiction and that the motion is otherwise meritless. The Court agrees with the Government on both points.

         A. Defendant fails to state a prime facie case for modifying his sentence under 28 U.S.C. § 2255.

         A district court does not have unfettered authority to modify a criminal sentence. Rather, “a district court is authorized to modify a [d]efendant's sentence only in specified instances where Congress has expressly granted the court jurisdiction to do so.” United States v. Price, 438 F.3d 1005, 1007 (10th Cir. 2006) (alteration in original). Defendant does not identify a statutory basis for relief. But, mindful of his pro se status, the Court construes his motion as one pursuant to 28 U.S.C. § 2255. See In re Cline, 531 F.3d 1249, 1253 (10th Cir. 2008) (“A § 2255 motion is one 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.” (quoting United States v. Nelson, 465 F.3d 1145, 1148 (10th Cir. 2006))).

         As noted above, Defendant already filed a habeas petition in this case in 1999. Because the instant motion is Defendant's second habeas petition under § 2255, the United States Court of Appeals for the Tenth Circuit must first certify that Defendant's motion contains “a prima facie showing, ” 28 U.S.C. § 2244(b)(3)(C), of newly discovered exculpatory evidence or “a new rule of constitutional law, made retroactive to cases on collateral ...


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