United States District Court, D. Kansas
MEMORANUDM AND ORDER
W. SKAVDAHL UNITED STATES DISTRICT JUDGE
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. 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
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).
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.
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.
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.
Motion For Relief Under Rule 60(b) Of The Federal Rules Of
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.
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).
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
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.
Successive Motion Under ...