Opinion
Civil Case No. 01-3117-SAC, Criminal Case No. 93-40001-01-SAC
May 3, 2001
MEMORANDUM AND ORDER
On April 22, 1993, the grand jury returned a ten count superseding indictment charging Steve E. Williams and others with conspiracy to distribute in excess of 100 kilograms of marijuana, distribution of marijuana, money laundering and other related crimes. Pursuant to a plea agreement, Williams plead guilty to Count One (conspiracy in violation of 21 U.S.C. § 846) and to Count Seven (money laundering in violation of 18 U.S.C. § 1956). In exchange, the government agreed to dismiss the remaining counts of the superseding indictment. On January 5, 1994, this court sentenced Williams to a primary term of incarceration of 292 months on Count 1 and to a concurrent sentence of 60 months on Count 7. On March 27, 1995, the Tenth Circuit affirmed the sentence imposed by this court. See United States v. Williams, 51 F.3d 287 (10th Cir. 1995) (Table).
On April 5, 1996, Williams filed a "Petition for Relief Pursuant to 28 U.S.C. § 2255" (Dk. 227). Williams' § 2255 motion argued that: (1) his counsel was ineffective; (2) that his convictions were barred by double jeopardy and/or res judicata principles; and (3) that his plea was not voluntary. On July 18, 1997, this court entered a memorandum and order denying Williams' § 2255 motion. United States v. Williams, 948 F. Supp. 956 (D.Kan. 1997). On July 18, 1998, the Tenth Circuit Court of Appeals entered an order denying Williams' request for a certificate of appealability, essentially agreeing with the analysis this court used in denying Williams' motion to vacate his conviction and sentence.
On August 17, 1998, the Tenth Circuit entered an order denying Williams' motion to reinstate his petition for relief. The Tenth Circuit agreed with the defendant that his § 2255 motion was filed before the effective date of the statute imposing the requirement for a certificate of appealability in § 2255 appeals. "However, in the Order, the court reached the merits of this appeal, and its rejection of the appeal on the merits was the basis for its refusal to issue a certificate of appealability. There are no grounds for reinstatement because the court has already determined the appeal to be without substantive merit."
On February 8, 1999, Williams filed a motion "In Support of This 28 U.S.C. § 2255 petition wherein Defendant Contend (sic) that the August 17, 1998, order filed by the Tenth Circuit Court of Appeals Regarding the Same set of Facts Dictate that Defendant's one Year Period established in the `Act' Began on August 17, 1998." (Dk. 249). The court construed this motion as the defendant's second § 2255 motion and determined that without the Tenth Circuit's prior authorization it did not have jurisdiction to decide it. Pursuant to circuit precedent, the district court transferred the motion to the Tenth Circuit.
The case now comes before the court on a successive § 2255 motion for relief filed March 27, 2001. (Dk. 256). When a defendant files a successive § 2255 motion without first seeking the required authorization, the district court must transfer the motion to the appellate court in the interest of justice pursuant to 28 U.S.C. § 1631. Coleman v. United States, 106 F.3d 339, 341 (10th Cir. 1997). Even though the timeliness of defendant's recent motion is in issue, the court still must transfer the motion to the Tenth Circuit. See United States v. Espinoza-Saenz, 235 F.3d 501, 503 (10th Cir. 2000).
IT IS THEREFORE ORDERED that the defendant's successive motion for relief pursuant to 28 U.S.C. § 2255 (Dk. 256) is transferred to the Tenth Circuit Court of Appeals pursuant to 28 U.S.C. § 1631;
IT IS FURTHER ORDERED that the Clerk of the Court shall forward a copy of the defendant's motion (Dk. 256), along with a copy of this Memorandum and Order, to the Clerk of the Tenth Circuit Court of Appeals for processing under 28 U.S.C. § 2244(b)(3). The Clerk also shall send a copy of this Memorandum and Order to the defendant and the local office of the United States Attorney.