United States District Court, D. Kansas
MEMORANDUM & ORDER
W. Lungstrum, United States District Judge
2011, a jury convicted defendant Don Steele of numerous drug,
forgery and counterfeiting charges as well as possessing a
firearm in furtherance of a drug trafficking crime.
Ultimately, the court sentenced Mr. Steele to a total term of
300 months imprisonment. This sentence included two
concurrent mandatory minimum terms of 20 years which the
court imposed after finding that Mr. Steele had a qualifying
prior felony drug conviction for purposes of imposing an
enhanced sentence under 21 U.S.C. §
841(b). The sentence also included a mandatory
consecutive term of 60 months on the firearm charge. The
Tenth Circuit affirmed Mr. Steele’s conviction and the
enhancement of his sentence. United States v. Dyke,
718 F.3d 1282 (10th Cir. 2013). The court later denied Mr.
Steele’s 28 U.S.C. § 2255 motion and the Circuit
denied Mr. Steele a certificate of appealability.
August 2019, the court retained under advisement portions of
two pro se motions filed by Mr. Steele-a Motion to Show Cause
Under Rule 41(g) for Return of Property (doc. 454) and a
motion for discovery (doc. 464). By way of background, Mr.
Steele argued in portions of those motions that his Sixth
Amendment right was violated during the time that he was
incarcerated at CCA Leavenworth Detention Center. These
allegations were facially related to and stemmed from
allegations made in a case pending before Judge Robinson of
this District. Out of an abundance of caution, the court
retained those issues under advisement pending a ruling by
Judge Robinson in her case and, in doing so, expressed no
opinion on the merits of any arguments asserted by the
Judge Robinson issued an opinion in which she directed the
parties to submit to her a list of pending “§ 2255
cases filed pursuant to Standing Rule 18-3 or otherwise
raising Sixth Amendment claims related to the Black
case” so that the Clerk of the Court could then
reassign those cases to her. This court then ordered the
government to advise the court whether it intended to include
this case on its list of pending of cases submitted to Judge
Robinson. The government, pursuant to this court’s
order, has now notified the court that it does not believe
that this case should be consolidated with the cases pending
before Judge Robinson, in large part because Mr.
Steele’s motions must be construed as unauthorized
successive § 2255 petitions such that the court lacks
jurisdiction to resolve them. Thus, the only thing left in
this matter is for this court to determine how to handle
those portions of Mr. Steele’s motions that remain
under advisement. In other words, the matter is fully briefed
and no additional briefing is required or invited from the
meantime, Mr. Steele has filed a motion to stay (doc. 477) in
which Mr. Steele asserts his belief that he is being
transferred to a new facility. He asks the court to stay this
matter until he can notify the court of his new location and
obtain his legal papers. The motion is denied because, as
just explained, there is nothing remaining in this case that
might require Mr. Steele to access his legal papers or that
otherwise warrants a stay in this matter.
reviewed the parties’ submissions, the court now denies
the remaining portions of Mr. Steele’s motions. In
those motions, Mr. Steele unquestionably seeks to
collaterally attack his conviction based on alleged Sixth
Amendment violations. The Circuit has held, albeit in an
unpublished opinion, that a defendant may not collaterally
attack his conviction through a post-conviction Rule 41(g)
motion. See United States v. Penry, 515 Fed.Appx.
784, 789 (10th Cir. June 3, 2013) (affirming denial of Rule
41(g) motion where defendant sought to collaterally challenge
circumstances surrounding search and seizure). Moreover, Mr.
Steele is not entitled at this juncture to bring a collateral
attack on his conviction under 28 U.S.C. § 2255 because
any attempt to do so would constitute an unauthorized
successive petition. In other words, the court cannot simply
construe the Rule 41(g) motion and related discovery motion
as a motion under § 2255 because the court would lack
jurisdiction to consider those motions in any event. Thus, if
Mr. Steele desires to pursue his Sixth Amendment allegations,
he must seek authorization from the Circuit to file a
successive § 2255 petition. 28 U.S.C. § 2255(h).
IS THEREFORE ORDERED BY THE COURT THAT Mr.
Steele’s Motion to Show Cause Under Rule 41(g) for
Return of Property (doc. 454) and motion for discovery (doc.
464) are now denied in full.
IS FURTHER ORDERED BY THE COURT THAT Mr.
Steele’s motion to stay (doc. 477) is
IS SO ORDERED.
 To trigger the prior-conviction
sentencing enhancement, the government filed, prior to trial,
an information giving notice of its intent to rely upon the
prior conviction, as ...