United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL, UNITED STATES DISTRICT JUDGE
On
September 27, 2011, defendant pled guilty to being a felon in
possession of a firearm in violation of 18 U.S.C.
§§ 922(g), 924(a)(2) and 924(e). On December 21,
2011, the Court sentenced defendant to 200 months in prison.
Defendant did not appeal or file a motion under 28 U.S.C.
§ 2255. This matter is before the Court on
defendant's Motion For Appointment Of Counsel And
Evidentiary Hearing (Doc. #41) and his Motion For
Relief From Judgment [Under] Rule 60(b) (Doc. #42), both
filed March 11, 2019. For reasons stated below, the Court
overrules defendant's motion to appoint counsel and set
an evidentiary hearing, and directs defendant to file a
memorandum that states whether he agrees to have his motion
for relief from judgment construed as a motion under 28
U.S.C. § 2255 or chooses to withdraw it.
Analysis
I.
Motion For Relief From Judgment (Doc. #42)
Initially,
the Court addresses how defendant's motion for relief
from judgment should be construed. Defendant attempts to
bring his motion under Rule 60(b) of the Federal Rules of
Civil Procedure. The relief sought - not a motion's title
- determines how the Court should construe a motion.
United States v. Wetzel-Sanders, 805 F.3d 1266, 1268
(10th Cir. 2015); United States v. Nelson.
465 F.3d 1145, 1149 (10th Cir. 2006). Rule 60(b) of the Rules
of Civil Procedure does not authorize the Court to reconsider
a conviction and sentence in a criminal case. See United
States v. Johnson, 159 Fed.Appx. 835, 838-39 (10th Cir.
2005) (Rule 60(b) does not provide relief from judgment in
criminal case). After any direct appeal in a criminal action,
defendant's exclusive remedy for raising a challenge to
his sentence is under Section 2255 unless that remedy is
inadequate or ineffective. See United States v.
Mclntyre, 313 Fed.Appx. 160, 162 (10th Cir. 2009);
Bradshaw v. Story. 86 F.3d 164, 166 (10th Cir.
1996).
Here,
defendant asks the Court to resentence him because he no
longer qualifies for an enhancement under the Armed Career
Criminal Act ("ACCA"), 18 U.S.C. § 924(e).
Defendant has not alleged or shown that his claim could not
have been brought under Section 2255 or that his remedy under
Section 2255 is otherwise inadequate or ineffective. Because
defendant's claim in substance and effect asserts federal
grounds for relief from his underlying conviction and
sentence, his exclusive remedy is under Section 2255.
Accordingly, except as provided under 28 U.S.C. § 2255,
the Court lacks jurisdiction to grant relief on his claim.
See United States v. Blackwell, 81 F.3d 945, 947
(10th Cir. 1996).
The
docket reflects that defendant's motion for relief from
judgment was docketed as one under 28 U.S.C. §2255. The
designation of the motion as a Section 2255 motion was
premature.[1] If a pro se federal prisoner has not
previously filed a Section 2255 petition, the Court should
not recharacterize a document as a Section 2255 petition
unless the Court "informs the litigant of its intent to
recharacterize, warns the litigant that the
recharacterization will subject subsequent §2255 motions
to the law's 'second or successive' restrictions,
and provides the litigant with an opportunity to withdraw, or
to amend, the filing." Castro v. United States,
540 U.S. 375, 377 (2003); see United States v.
Kelly, 235 F.3d 1238, 1241 (10th Cir. 2000) (district
court should not sua sponte recharacterize document as
initial Section 2255 motion because "subsequent §
2255 motion would be considered successive" and barred
except "in very limited circumstances"); see
also United States v. Holly. 435 Fed.Appx. 732, 735
(10th Cir. 2011) (rule ensures that district court does not
"use[ ] up" defendant's "one shot at
attacking his convictions and sentence" by
recharacterizing document as § 2255 motion).
Defendant
apparently received notice that the Clerk had docketed his
motion for relief from judgment as a Section 2255 motion and
he has not objected. Even so, he should have an opportunity
to object after receiving notice that if the Court construes
his motion as a Section 2255 motion, any subsequent Section
2255 motions will be subject to restrictions on second or
successive motions. In particular, pursuant to the
Antiterrorism and Effective Death Penalty Act of 1996, a
defendant may not file a second or successive motion pursuant
to Section 2255 unless he first applies to the appropriate
court of appeals for an order authorizing the district court
to consider the motion. See 28 U.S.C. §§
2244(b)(3), 2255(h). A second or successive motion under
Section 2255 may be filed in the district court only after
the court of appeals certifies that the motion is based on
"(1) newly discovered evidence that, if proven and
viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing evidence that
no reasonable factfinder would have found the movant guilty
of the offense; or (2) a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable." 28 U.S.C.
§ 2255(h).
On or
before October 4, 2019, defendant shall file a memorandum
that states whether he (1) agrees to have his Motion For
Relief From Judgment [Under] Rule 60(b) (Doc. #42)
construed as a motion under 28 U.S.C. § 2255 or (2)
chooses to withdraw it. If defendant agrees to have his
motion construed as a Section 2255 motion, the Court will set
a deadline for him to amend his motion so that he can raise
any other claims in his initial motion without the potential
bar that applies to second or successive motions. If
defendant does not file a response by October 4, 2019, the
Court will consider his motion for relief from judgment under
Rule 60(b) as having been withdrawn and will not address it.
II.
Motion To Appoint Counsel And Set An Evidentiary Hearing
(Doc. #41)
Defendant
seeks appointment of counsel to assist with his motion for
relief from judgment. In determining whether to appoint
counsel in a civil case, the Court considers several factors
including (1)the merit of the litigant's claims; (2) the
nature of the factual issues raised in the claims; (3) the
litigant's ability to present his or her claims; and (4)
the complexity of the claims involved. See Williams v.
Meese. 926 F.2d 994, 996 (10th Cir. 1991). Applying
these factors, defendant is not entitled to counsel. As
explained above, unless defendant agrees to have his motion
for relief from judgment construed as a Section 2255 motion,
the Court lacks jurisdiction to grant relief on his claim.
Moreover, even if defendant agrees to have his motion for
relief from judgment construed as a Section 2255 motion, his
claim is not particularly complex factually or legally, and
he is able to adequately present his claim. For these same
reasons, at this stage, defendant has not shown that an
evidentiary hearing is necessary. Accordingly, the Court
overrules defendant's motion to appoint counsel and set
an evidentiary hearing.
IT
IS THEREFORE ORDERED that defendant's Motion
For Appointment Of Counsel And Evidentiary Hearing (Doc.
#41) filed March 11, 2019 is OVERRULED.
IT
IS FURTHER ORDERED that on or before October 4, 2019,
defendant shall file a memorandum that states
whether he (1) agrees to have his Motion For Relief
FromJudgment [Underl Rule 60(b) (Doc. #42)
filed March 11, 2019 construed as a motion under 28 U.S.C.
ยง 2255 or (2) chooses to withdraw that motion. If
defendant agrees to have his motion construed as a Section
2255 motion, the Court will set a deadline for him to amend
his motion. If defendant does not file a response by October
4, 2019, ...