Opinion
NO. 1:08-CR-00039(2)
03-25-2014
UNITED STATES OF AMERICA, v. DARRYL KINDER.
OPINION AND ORDER
This matter is before the Court on two motions. First, Defendant's Motion to Dismiss Pursuant to Fed. R. Civ. P. 60(b)(4) and 60(d) as Void for Want of Jurisdiction (doc. 109), the government's Response (doc. 112), and Defendant's Reply (doc. 113). Second, Defendant's Motion for Modification of Sentence Pursuant to 18 U.S.C. § 3582 (doc. 101), and the government's Response in Opposition (doc. 108). For the reasons indicated herein, the Court DENIES Defendant's Motion to Dismiss Pursuant to Fed. R. Civ. P. 60(b)(4) and 60(d) because it is a successive petition, and HOLDS IN ABEYANCE Defendant's Motion for Modification of Sentence Pursuant to 18 U.S.C. § 3582 pending the ruling of the Supreme Court on the Petition for Writ of Certiorari in Blewett v. United States, Case Nos. 12-5226, 12-5582.
Defendant entered a plea of guilty in 2008 to possession with intent to distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(iii) and 18 U.S.C. § 2, as well as possession of firearms in furtherance of a drug trafficking crime in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2. In the statement of facts, which Defendant signed, he acknowledged that he was involved in selling crack cocaine at his residence in Wilmington, Ohio, and that there were a number of firearms in the house (doc. 51). The Court sentenced Kinder to 60 months of imprisonment on each count to run consecutively, with five years of supervised release to follow.
Defendant has already moved for post-conviction relief based on Fed. R. Crim. P. 12(b)(2) under the theory that the Court lacks subject matter jurisdiction over the case (doc. 96). In its August 14, 2013 Order, the Court denied such motion, finding the motion constituted a Section 2255 motion filed out of time (doc. 105). The Court nonetheless indicated there was no question it had subject matter jurisdiction over the case (Id. citing Lamar v. United States, 240 U.S. 60, 65 (1916)).
The Court will first address Defendant's Rule 60 motion. The government indicates it should be considered a successive Section 2255 motion, which the Court cannot entertain without authorization from the Sixth Circuit (doc. 112 citing 28 U.S.C. § 2244(b)(3)(A); 28 U.S.C. § 2255(h)). The Court agrees. Defendant's Reply indicates that in his view the Court ruled procedurally on his Rule 12 motion and never reached the merits, only in dicta stating that it had jurisdiction. In his view, therefore he should not be barred from raising the jurisdiction question again. The Court need not reach the question, as it must defer to the Sixth Circuit before having authority to do so. The Court therefore DENIES Defendant's Rule 60 motion as a successive Section 2255 motion.
As for Defendant's Motion for Modification of Sentence Pursuant to 18 U.S.C. § 3582 (doc. 101), Defendant contends he is entitled to relief based on United States v. Blewett, 719 F.3d 482 (6th Cir. May 17, 2013). The Sixth Circuit held in Blewett that the mandatory minimum sentences of the Fair Sentencing Act apply retroactively to defendants who were sentenced before August 3, 2010, the effective date of the Act. As the Sixth Circuit subsequently agreed to review Blewett en banc, this Court previously held the instant case in abeyance pending the outcome of such hearing (doc. 107). On December 3, 2013 the Sixth Circuit ruled en banc that the Fair Sentencing Act does not have retroactive applicability to defendants whose sentences became final before August 3, 2010 (doc. 108).
The government contends that because Defendant's sentence became final in 2009, before the effective date of the Fair Sentencing Act, under the Sixth Circuit's en banc decision, Defendant is not entitled to retroactive application of the Act (doc. 108). The Court finds the government's position well-taken but declines to issue an Order on the question due to the pending Petition for Writ of Certiorari in the Blewett matter. In the interests of justice and finality, the Court finds that it should again hold Defendant's motion in abeyance until the forthcoming decision from the Supreme Court is issued in Blewett.
Accordingly, the Court DENIES Defendant's Motion to Dismiss Pursuant to Fed. R. Civ. P. 60(b)(4) and 60(d) (doc. 109), and HOLDS IN ABEYANCE Defendant's Motion for Modification of Sentence Pursuant to 18 U.S.C. § 3582 (doc. 101).
SO ORDERED.
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S. Arthur Spiegel
United States Senior District Judge