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United States v. Akers

United States District Court, D. Kansas

November 8, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
MONTGOMERY CARL AKERS, Defendant.

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL, UNITED STATES DISTRICT JUDGE

         On November 20, 2006, the Court sentenced defendant to 327 months in prison. On January 16, 2008, the Tenth Circuit Court of Appeals affirmed defendant's sentence. Since that time, defendant has filed a litany of frivolous motions and appeals throughout the country involving various collateral matters related to his conviction and sentence. This matter is before the Court on defendant's Motion To Void The Original Habeas Proceedings In This Case Based Upon A Lack Of Subject-Matter Jurisdiction (Doc. #475) filed March 18, 2019, defendant's Motion For Appointment Of The Federal Public Defender Per Standing Order 18-3 (Doc. #476) filed March 18, 2019, defendant's Motion To Amend The Restitution Order (Doc. #477) filed March 18, 2019, defendant's Motion For Status Update Regarding Doc. #475 Filed On March 28, 2019 (Doc. #481) filed July 10, 2019, Defendant's Motion In Notifying The District Court That He Is Being Interfered With And Being Denied The Ability To Retain And Secure Licensed Counsel To Represent Him Concerning Docket [Nos.] 475, 476, 477, 478, 479 [And] 480 Before This Court (Doc. #482) filed July 15, 2019 and defendant's Motion For Leave To Proceed On Appeal Without Prepayment Of Costs Or Fees (Doc. #485) filed October 21, 2019. For reasons stated below, defendant is not entitled to any relief. In addition, the Court sanctions defendant in the amount of $76, 000.00 for his current filings and proposes restrictions on defendant's filing of documents.

         Factual And Procedural Background

         While serving a 105-month sentence at USP-Leavenworth for bank fraud and related charges, defendant successfully recruited an unwitting pen pal to help him create worthless checks and engage in fraudulent activity. As a result, a grand jury returned an indictment which charged him with five counts of wire fraud.

         While the indictment was pending, defendant recruited Donald Mixan, a fellow inmate at Corrections Corporation of America in Leavenworth, Kansas, to help engage in a scam involving opening accounts with counterfeit checks. After Mixan was released from custody, defendant coordinated with Mixan to execute the fraudulent scheme which involved payments to defendant's alleged wife, attorneys that defendant wanted to retain and Mixan's landlord. As a result, a grand jury returned a superseding indictment which added a count for conspiracy to commit bank fraud.

         After defendant pled guilty to one count of wire fraud and was awaiting sentencing, he initiated yet another fraudulent scheme involving a pen pal who suffered from multiple sclerosis. In the end, before the fraudulent scheme could be fully executed, the pen pal's son contacted law enforcement personnel.

         Still before sentencing, defendant proceeded to recruit another unwitting participant, a former cellmate's daughter, in a fraudulent scheme based on his promise of employment and financial security. The individual was unable to actually produce any fraudulent checks for defendant, but she and her family suffered financially from his conduct.

         On November 20, 2006, the Court sentenced defendant to 327 months in prison. The Tenth Circuit affirmed defendant's sentence on direct appeal. See United States v. Akers, 261 Fed.Appx. 110 (10th Cir. Jan. 16, 2008).

         On September 1, 2009, the Court overruled defendant's Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Doc. #308) filed April 29, 2009. See Memorandum And Order (Doc. #321).

         In addition to numerous post-conviction motions filed in this criminal matter, defendant throughout the country has filed multiple civil suits involving this case against his former attorney, the undersigned judge, the prosecutor, the FBI case agent, deputy U.S. Marshals and others. See, e.g., Akers v. Flannigan, No. 17-3094-SAC, 2017 WL 6550860 (D. Kan. Nov. 8, 2017) (dismissing action under Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) against AUSA, FBI agent and BOP legal advisor); Akers v. Walton, No. 14-CV-1330-DRH, 2015 WL 264705, at *3 (S.D. Ill. Jan. 20, 2015) (dismissing § 2241 action asserting denial of unfettered access to financial resources outside prison walls); Akers v. Walton, No. 13-CV-01090-DRH, 2013 WL 6068584, at *1 (S.D. Ill. Nov. 18, 2013) (dismissing § 2241 action alleging BOP interfered with access to finances and tampered with legal mail); Akers v. Roal-Werner, No. 12-CV-1037-DRH, 2012 WL 5193583, at *3 (S.D. Ill. Oct. 19, 2012) (dismissing § 2241 action alleging prison staff interfered with communications with counsel and denied access to finances); Akers v. Roal, No. 11-cv-622-MJR, ECF Docs. 38 and 39 filed Aug. 13, 2012 and Sept. 11, 2012 (S.D. Ill.) (dismissing Bivens action alleging prison staff interfered with communications with counsel and denied access to finances); Akers v. Hollingsworth, No. 11-CV- 00103-DRH, 2011 WL 4404121, at *1 (S.D. Ill. Sept. 21, 2011) (dismissing § 2241 action requesting “privileged, unmonitored, meaningful contact with his attorney; preventing prison staff from rejecting his attorney's correspondence; and enjoining the Bureau of Prisons from denying him the right to access and sell his legitimate assets, by phone or mail, in order to fund his legal expenses”); Akers v. Rokusek, No. 09-cv-448-KJD-PAL, ECF No. 12 (D. Nev. Mar. 19, 2010) (dismissing Bivens action against former counsel, FBI agent, AUSA and some 40 others); Akers v. Shute, No. 08-3106-SAC, 2010 WL 934616, at *2-4 (D. Kan. Mar. 11, 2010) (dismissing Bivens action alleging deputy U.S. Marshals, AUSA and FBI agent interfered with mail); Akers v. Keszei, Nos. 09-1654 & 09-1834, Judgment at 1-2, available on Pacer (1st Cir. Jan. 21, 2010) (affirming dismissal of civil rights actions filed in Districts of New Hampshire and Maine alleging FBI agents, AUSA, defense counsel and deputy U.S. Marshal interfered with business dealings and attorney communications); Akers v. Crow, 343 Fed.Appx. 319 (10th Cir. Aug. 28, 2009) (affirming dismissal and finding frivolous Bivens action against district judge and clerk of court); Akers v. Martin, 227 Fed.Appx. 721 (10th Cir. Mar. 23, 2007) (affirming dismissal of Bivens action against AUSA, defense counsel, FBI agent, undersigned judge and U.S. Attorney); Akers v. Keszei, No. 07-00572-JCM, 2009 WL 1530819 (D. Nev. June 1, 2009) (dismissing suit against FBI agent and others); Akers v. Vratil, No. 08-cv-2692-SBA, ECF No. 10 (N.D. Cal. Oct. 17, 2008) (transferring case to D. Kan. against undersigned judge, AUSA and deputy U.S. Marshals); Akers v. Martin, No. 07-3569, Judgment, ECF No. 16 (8th Cir. Feb. 21, 2008) (summarily affirming dismissal of FBI agent, prosecutor, prior counsel, deputy U.S. Marshals, victims of fraudulent scheme and others).

         In the pending motions, defendant seeks essentially the same relief that this Court and other courts have repeatedly denied.

         Analysis

         I. Defendant's Motion To Void Judgment (Doc. #475)

         Under Rule 60(b)(4) of the Federal Rules of Civil Procedure, defendant asks the Court to void the judgment on his initial Section 2255 motion for lack of jurisdiction. Motion To Void The Original Habeas Proceedings (Doc. #475) at 1. Initially, the Court must address how to construe defendant's motion.

         The relief sought B not a motion's title B determines whether a movant filed a true Rule 60(b) motion or an unauthorized second or successive petition under Section 2255. United States v. Nelson, 465 F.3d 1145, 1149 (10th Cir. 2006); see also United States v. Torres, 282 F.3d 1241, 1242, 1246 (10th Cir. 2002) (allowing petitioner to avoid bar against successive petitions by styling petition under different name would erode procedural restraints of Sections 2244(b)(3) and 2255). A true Rule 60(b) motion (1) challenges only a procedural ruling (such as timeliness) which precluded a merits determination of the habeas application or (2) challenges a defect in the integrity of the federal habeas proceedings, 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, 1224-25 (10th Cir. 2006). An issue should be considered part of a second or successive petition “if it in substance or effect asserts or reasserts a federal basis for relief from the petitioner's underlying conviction.” Id. at 1225. When determining the nature of a motion, the Court considers each issue in the motion to determine whether it represents a successive petition, a Rule 60(b) motion or a “mixed” motion. Id. at 1224.

         Defendant argues that the Court lacked subject matter and personal jurisdiction in the habeas proceeding because the superseding indictment does not charge a violation of federal law. Specifically, defendant asserts that (1) in February of 2000, Fidelity Investments was not a federally insured financial institution doing business in Kansas, (2) it was factually impossible for a grand jury in Kansas to find that he committed the charged crime, (3) the grand jury returned the superseding indictment after the statute of limitations had expired and (4) he was arrested and charged based on perjured testimony, fraud, deceit and outrageous prosecutorial misconduct. See Motion To Void The Original Habeas Proceedings (Doc. #475) at 1-3; Second Addendum To Defendant's Motion To Void The Judgment In The First Habeas Proceedings Of This Case (Doc. #478) filed March 29, 2019, at 6-7; Brief In Support Of And Clarification Of Defendant's Motion To Void The Original Habeas Proceedings In This Case Based Upon A Lack Of Subject-Matter Jurisdiction (Doc. #480) filed May 20, 2019, at 2-4 & 3 n.1.

         Defendant characterizes his motion as a “true” Rule 60(b) motion because it asserts that the Court incorrectly denied relief “for failure to exhaust, procedural bar, or . . . statute of limitations.” Brief In Support (Doc. #480) at 1. In reality, his claims challenge the substance of the Court's ruling on his original Section 2255 motion. In an order entered some ten years ago, the Court overruled on the merits defendant's claims that counsel provided ineffective assistance because she “coaxed defendant into pleading guilty to a crime that was legally impossible for him to have committed” and did not argue that the Court lacked subject matter jurisdiction. Memorandum And Order (Doc. #321) at 3-4. The Tenth Circuit affirmed. Now, defendant asks the Court to reconsider its ruling on subject matter jurisdiction and the sufficiency of the indictment. See Motion To Void The Original Habeas Proceedings (Doc. #475) at 3 (district court lacked jurisdiction because “factually impossible” to commit charged crime; district court lacked personal jurisdiction over defendant for entirety of case); Second Addendum (Doc. #478) at 1 (defendant not present at USP-Leavenworth when his “unconstitutional loss of liberty began on August 30, 2004”); id. (Court “lacked authority under Article III to (1) entertain [the government's] claims, (2) detain the Defendant in federal custody, (3) allow him to stand trial or enter into plea negotiations, [and] (4) enter any judgments”); Brief In Support (Doc. #480) at 3 (“indictment is fatally deficient”); id. at 4 (court lacks subject matter jurisdiction to enter orders because defendant not “legally and factually charged with a violation of federal law”); id. at 5 (court lacked jurisdiction over crime of wire fraud alleged in superseding indictment).

         All of defendant's present claims in substance or effect assert or reassert federal grounds for relief from his underlying conviction and sentence. Indeed, at least as to one of his theories, defendant concedes that he challenged the “very same jurisdictional element in his original habeas proceeding.” Brief In Support (Doc. #480) at 5. Because defendant has previously sought relief under Section 2255, the Court construes his claims as part of a second or successive Section 2255 motion.[1]

         Defendant argues that because his unconstitutional loss of liberty began on August 30, 2004, near the time of his initial detention, he is not attacking the “underlying conviction, sentence, or the ruling on the merits in his prior habeas proceedings.” Second Addendum (Doc. #478) at I. Defendant also maintains that he is challenging subject matter jurisdiction only in the “habeas proceeding, ” but his arguments are merely a reiteration of his prior challenge to the sufficiency of the indictment, which necessarily challenges the validity of his conviction. Defendant's jurisdictional claims also lead inextricably to a merits-based attack on the disposition of his prior Section 2255 motion. See Brief In Support (Doc. #480) at 2 (court mischaracterized plea proceedings to support erroneous conclusion on subject matter jurisdiction). Accordingly, the Court construes defendant's present claims about the sufficiency of the indictment and subject matter jurisdiction as an attack on his conviction.[2]

         II. Relief Under 28 U.S.C. § 2255

         As stated, defendant previously filed a Section 2255 motion. Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996, 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). If defendant files a second or successive motion without first seeking the required authorization, the district court may (1) transfer the motion to the appellate court if it determines that it is in the interest of justice pursuant to 28 U.S.C. § 1631 or (2) dismiss the motion for lack of jurisdiction. See In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008). The Court has discretion whether to transfer or dismiss without prejudice. Trujillo v. Williams, 465 F.3d 1210, 1222-23 (10th Cir. 2006). In making this decision, the Court considers whether the claims would be time-barred if filed anew in the proper forum, are likely to have merit and were filed in good faith or, on the other hand, if it was clear at the time of filing that the Court lacked jurisdiction. Id. at 1223 n.16.

         A second or successive motion under 28 U.S.C. § 2255 may be filed in the district court if 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 establish by clear and convincing evidence that no reasonable fact finder would have found defendant 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).

         Because defendant did not receive authorization from the Tenth Circuit and it appears that his claims do not satisfy the authorization standards under Section 2255, the Court dismisses the motion rather than transferring it to the Tenth Circuit. See In re Cline, 531 F.3d at 1252 (district court may refuse to transfer motion which fails on face to satisfy authorization standards of Section 2255(h)); Phillips v. Seiter, 173 F.3d 609, 610 (7th Cir. 1999) (waste of judicial resources to require transfer of frivolous, time-barred cases).

         Here, defendant's claims do not assert new evidence or argue that the Supreme Court has made retroactive a new rule of constitutional law. Rather, defendant raises claims that he either asserted or could have asserted on direct appeal or in his initial Section 2255 motion. Accordingly, the Court declines to transfer the present motion to the court of appeals.

         III. Certificate Of Appealability

         Under Rule 11 of the Rules Governing Section 2255 Proceedings, the Court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. A certificate of appealability may issue only if the applicant has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).[3] To satisfy this standard, the movant must demonstrate that “reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Saiz v. Ortiz, 392 F.3d 1166, 1171 n.3 (10th Cir. 2004) (quoting Tennard v. Dretke, 542 U.S. 274, 282 (2004)). For reasons stated above, defendant has not satisfied this standard. The Court therefore denies a certificate of appealability as to its ruling on defendant's Section 2255 motion.

         IV. Motion To Amend Restitution Order (Doc. #477)

         Defendant asks the Court to order the BOP to allow him to obtain a “forensic financial investigation” and to submit the investigation along with full payment of his restitution. Motion To Amend The Restitution Order (Doc. #477) at 10; see id. at 7 (“BOP staff have refused to send mail to financial advisors, who the defendant has contacted for assistance in . . . paying the restitution order to this court.”). While defendant states that he “will vigorously attack the underlying judgment in this case as invalid and void, ” id. at 2, he seeks to pay the restitution in full now that he purportedly has the ability to do so. Defendant states that BOP personnel have prevented him from (1) consummating the sale of his business concept for five billion dollars and (2) accessing 270 ...


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