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United States v. Mays

United States District Court, D. Kansas

September 16, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
VERDELL MAYS, Defendant.

          MEMORANUDM AND ORDER

          SCOTT W. SKAVDAHL UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Petitioner's Pro Se Motion Pursuant To Federal Rules Of Civil Procedure 60(b)(6) Seeking To Reopen A Judgment In A 28 U.S.C. § 2255 Based On The Principles Established By The United States Supreme Court In Castro v. United States, 540 U.S. 375 (US, 2003) (ECF No. 1123, pages 1-6) filed May 10, 2019.[1] Because Mr. Mays attached to his Rule 60(b) motion a Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (ECF No. 1123, pages 7-18), the Court also construes his Rule 60(b) motion as a successive motion under 28 U.S.C. § 2255. For reasons stated below, the Court overrules defendant's Rule 60(b) motion, dismisses his Section 2255 motion and denies a certificate of appealability.

         BACKGROUND

         On February 3, 2014, Verdell Mays pled guilty to conspiracy to manufacture, to possess with intent to distribute, and to distribute cocaine, cocaine base, and marijuana, and to maintain a drug-involved premises in violation of 21 U.S.C. §§ 841(a)(1), 846, and 856 (Count 1) and using a communication facility to facilitate a drug trafficking crime in violation of 21 U.S.C. § 843(d) (Count 3). See Petition To Enter Plea Of Guilty And Order Entering Plea (ECF No. 561). On May 15, 2014, the undersigned judge, sitting by designation, sentenced Mr. Mays to 225 months in prison. See Judgment In A Criminal Case (ECF No. 719) at 2-3. On April 8, 2015, the Tenth Circuit affirmed defendant's sentence. See Order And Judgment (ECF No. 927). On August 24, 2015, under Amendment 782 to the Sentencing Guidelines, which reduced by two levels defendant's base offense level, the Honorable Kathryn H. Vratil reduced his sentence to 180 months. See Order Regarding Motion For Sentence Reduction Pursuant To 18 U.S.C. § 3582(c)(2) (ECF No. 943).

         On November 14, 2018, the Court overruled defendant's first motion to vacate his sentence under 28 U.S.C. § 2255. See Memorandum And Order (ECF No. 1114). Defendant did not appeal.

         On December 7, 2018, Mr. Mays filed a letter (ECF No. 1115), which the Court construed as a second or successive motion under 28 U.S.C. § 2255. On December 10, 2018, the Court dismissed defendant's motion. See Memorandum And Order (ECF No. 1116). Defendant again did not appeal.

         On May 10, 2019, Mr. Mays filed the instant motion to reopen the habeas proceedings (ECF No. 1123, pages 1-6), along with a Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (ECF No. 1123, pages 7-18). In his Rule 60(b) motion, defendant argues that the Court erred in construing his letter (ECF No. 1115) as a second or successive motion under 28 U.S.C. § 2255. In his motion to vacate, defendant argues that (1) based on Alleyne v. United States, 570 U.S. 99 (2013), the Court sentenced him above the statutory maximum for his offense without the required findings by a jury or his plea; (2) counsel provided ineffective assistance at sentencing; (3) his plea of guilty was not knowing or voluntary because he pled without knowledge of Alleyne; and (4) counsel provided ineffective assistance on appeal.

         DISCUSSION

         I. Motion For Relief Under Rule 60(b) Of The Federal Rules Of Civil Procedure

          Initially, the Court evaluates whether defendant's motion to reopen proceedings is a true Rule 60(b) motion or an unauthorized second or successive petition under Section 2255. See Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005) (petitioners cannot circumvent statutory certification requirements applicable to second or successive applications by filing pleadings labeled as Rule 60(b) motions, which in substance are habeas corpus petitions). A “true” Rule 60(b) motion 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 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, 1216 (10th Cir. 2006) (citing Gonzalez, 545 U.S. at 532 & 532 n.4). Because defendant's motion challenges only the Court's procedural ruling to construe his letter as a Section 2255 motion without prior notice, it is a true Rule 60(b) motion.

         Rule 60(b) of the Federal Rules of Civil Procedure permits a party to move the Court for relief from a judgment or order for mistake, inadvertence, excusable neglect, fraud, or any other reasons justifying relief from the operation of the judgment. “Rule 60(b) relief is extraordinary and may only be granted in exceptional circumstances.” Lebahn v. Owens, 813 F.3d 1300, 1306 (10th Cir. 2016) (quotation marks and citation omitted).

         Mr. Mays argues that the Court erred in construing his letter (ECF No. 1115) as a second or successive motion under 28 U.S.C. § 2255. See Motion To Reopen (ECF No. 1123) at 2 (citing Castro v. United States, 540 U.S. 375, 383 (2003)). Although Mr. Mays asserts his claim under Rule 60(b)(6), a claim of judicial mistake ordinarily must be raised under Rule 60(b)(1) and it must be filed by the deadline for filing a notice of appeal. Cashner v. Freedom Stores, Inc., 98 F.3d 572, 578 (10th Cir. 1996); see Yapp v. Excel Corp., 186 F.3d 1222, 1231 (10th Cir. 1999) (Rule 60(b)(1) provides for reconsideration where party made excusable litigation mistake, attorney acted without authority; or court made substantive mistake of law or fact in final judgment or order). Because Mr. Mays failed to timely file his claim under Rule 60(b)(1), his claim likewise fails under Rule 60(b)(6). See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 393 (1993) (subsection (6) is “mutually exclusive” with other subsections of Rule 60(b)); Wallace v. McManus, 776 F.2d 915, 916 (10th Cir. 1985) (relief under subsection (6) not available if another provision of Rule 60(b) covers asserted grounds for relief); see also Davis v. Kan. Dep't of Corrs., 507 F.3d 1246, 1248 (10th Cir. 2007) (relief under Rule 60(b) not substitute for appeal); Cashner, 98 F.3d at 580 (broad power granted by subsection (6) not for purpose of relieving party from free, calculated, and deliberate choices; party has duty to take legal steps to protect interests).

         Even if Mr. Mays had timely filed his claim under Rule 60(b), the Court would deny relief because he has not established legal error or extraordinary circumstances that warrant relief. Ordinarily, before construing a pro se document as a Section 2255 motion, the Court provides a defendant an opportunity to withdraw the motion (to the extent that he wants to wait and combine arguments in a subsequent motion) or to supplement it. See Castro, 540 U.S. at 383. Where the pro se document would constitute a second of successive motion, however, a defendant is not prejudiced by lack of such notice. See United States v. Torres, 282 F.3d 1241, 1242, 1245-46 (10th Cir. 2002) (concern about characterizing document as initial § 2255, that is preventing prisoner from raising legitimate claim in subsequent § 2255 petition, does not apply where petitioner previously filed § 2255 petition). Here, Mr. Mays did not suffer any prejudice from the lack of notice in converting his letter (ECF No. 1115) to a Section 2255 petition because the Court had overruled his first Section 2255 petition some 25 days before he filed the letter. In sum, Mr. Mays has not shown that relief under Rule 60(b) is warranted.

         II. Successive Motion Under ...


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