United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE
23, 2010, the Court sentenced defendant to 360 months in
prison. On February 11, 2015, under Amendment 782 to the
Sentencing Guidelines, the Court reduced defendant's
sentence to 292 months. This matter is before the Court on
defendant's Motion To Reconsider His
(2255's) (Second Successive 2255s) . . . And Apply
Rule 60(b)(6) Discretion And Power (Doc. #1312) filed
September 30, 2019, which the Court construes as a second or
successive motion under 28 U.S.C. § 2255. For reasons
stated below, the Court dismisses defendant's motion for
lack of jurisdiction and denies a certificate of
noted, on June 23, 2010, the Court sentenced defendant to 360
months in prison. On August 20, 2010, the Court overruled his
Motion Under 28 U.S.C. § 2255 To Vacate,
Set Aside, Or Correct Sentence By A Person In Federal
Custody (Doc. #904) filed July 19, 2010. Memorandum
And Order (Doc. #916). On February 11, 2015, under
Amendment 782 to the Sentencing Guidelines, the Court reduced
defendant's sentence to 292 months (the low end of the
amended guideline range).
December 16, 2016, the Court dismissed defendant's
Motion For Reduction Of Sentence Pursuant
To 18 U.S.C. § 3582(c)(2) And In Conjunction
With The Amendment 794 To The Commentary To U.S.S.G.
§ 3B1.2 (Doc. #1151), which the Court construed as a
second or successive motion to vacate his sentence under 28
U.S.C. § 2255. Memorandum And Order (Doc.
#1153) at 2-3. On February 24, 2017, defendant filed a
Motion For Reconsideration In Light Of Retroactive
Amendment 794 (Doc. #1154). On May 31, 2017, the Court
overruled it. Memorandum And Order (Doc. #1178).
Defendant sought reconsideration. See Memorandum Motion
In Reconsideration [To] The District Court For A Memorandum
And Order To Dismis[s]ed Motion Minor Role Reduction Under
The Amendment 794 Amended § 3B1.2 Pursuant
[To] 18 U.S.C. § 3582(c)(2) (Doc. #1186) filed July
19, 2017 at 1. The Court dismissed defendant's motion to
reconsider, which it construed as a second or successive
motion under 28 U.S.C. § 2255. See Memorandum And
Order (Doc. #1218) filed March 9, 2018 at 2-3.
August 26, 2019, the Court dismissed defendant's
Motion [For] Downward Departure (Doc. #1263), which
the Court construed as yet another motion to vacate under 28
U.S.C. § 2255. See Memorandum And Order (Doc.
#1304) at 7-8.
construed, defendant's present motion asserts that at
sentencing, the Court erred in (1) applying an obstruction of
justice enhancement under U.S.S.G. § 3C1.1(c), (2)
applying a managerial role enhancement under U.S.S.G. §
3B1.1(b), (3) failing to sua sponte grant a mitigating role
adjustment under U.S.S.G. § 3B1.2(b) and (4)
miscalculating the drug quantity attributable to him. See
Motion To Reconsider (Doc. #1312) at 4-12. Defendant
also claims that at sentencing, counsel provided ineffective
assistance because he did not ask the Court to consider all
the sentencing factors under Section 3553. See id.
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); see United States v. Torres, 282 F.3d
1241, 1242, 1246 (10th Cir. 2002) (allowing petitioner to
avoid bar against successive petitioners by styling petition
under different name would erode procedural restraints of
Sections 2244(b)(3) and 2255). When determining the nature of
a motion, the Court considers each issue in the motion.
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
[defendant's] underlying conviction.” Id.
motion which attacks the judgment of conviction or sentence
when a prior motion has already done so constitutes a second
or successive motion under Section 2255.
Wetzel-Sanders, 805 F.3d at 1268; see
Spitznas, 464 F.3d at 1215-17 (motions that
“assert or reassert a federal basis for relief from the
underlying conviction” constitute second or successive
habeas petitions). All of defendant's claims assert or
reassert federal grounds for relief from his underlying
conviction and sentence. Because defendant has previously
sought relief under Section 2255, the Court construes these
claims as part of a second or successive Section 2255 motion.
Spitznas, 464 F.3d at 1215.
stated, defendant previously filed several Section 2255
motions. 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.
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
that was previously unavailable and made retroactive to cases
on collateral review by the Supreme Court. 28 U.S.C. §
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). Defendant's claims do not
assert new evidence or argue that the Supreme Court has made
retroactive a new rule of constitutional law. Thus, the Court
dismisses his claims for lack of jurisdiction.