Summary
observing that aBlakely challenge was "outside the scope of § 3582(c)," and noting that "petitioner's claim is more appropriately raised in a § 2255 motion."
Summary of this case from Shafer v. U.S.Opinion
Case No. 95-10012-01-WEB.
November 5, 2004
MEMORANDUM AND ORDER
Now before the Court is the motion of petitioner Bobbert S. Cook, to reduce his sentence under the provisions of 18 U.S.C. § 3582(c)(2). A review of the record reflects that petitioner was convicted on November 14, 1995 and was sentenced to 240 months in prison on February 08, 1996. Petitioner filed a motion for relief under 28 U.S.C. § 2255 on March 04, 1998, which was denied by the Court on July 30, 1998. On August 16, 2004, petitioner filed this motion for a modification of an imposed term of imprisonment pursuant to 18 U.S.C. § 3582(c)(2).
Petitioner claims that he meets the standards permitting review under § 3582(c)(2) because his sentence was imposed in violation of his constitutional rights under Blakely v. Washington, 124 S.Ct. 2531 (2004); therefore, his sentence should be reduced. Motion for Reduction at 19.
Title 18 U.S.C. Section 3582(c), Modification of an imposed term of imprisonment, states:
The court may not modify a term of imprisonment once it has been imposed except that — (2) in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o), upon motion of the defendant or the director of the Bureau of Prisons or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in § 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(2).
The United States Sentencing Guidelines (USSG) state:
Where a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines Manual listed in subsection (c) below, a reduction in the defendant's term of imprisonment is authorized under 18 U.S.C. § 3582(c)(2). If none of the amendments listed in subsection (c) is applicable, a reduction in the defendant's term of imprisonment under 18 U.S.C. § 3582(c)(2) is not consistent with this policy statement and thus is not authorized. USSG § 1B1.10(a).
Petitioner does not claim that any of the amendments under USSG § 1B1.10(c) retroactively apply to his case. Instead, he uses § 3582(c)(2) as a vehicle to argue that he was sentenced in violation of his constitutional rights under Blakely. This argument may not be brought under § 3582(c)(2) because it does not relate to a change in the sentencing guidelines by the sentencing commission. Cf. United States v. McBride, 283 F.3d 612, 616 (3rd Cir. 2002) ( Apprendi claim is independent and unrelated to any change in the Guideline and is outside the scope of a sentence reduction under § 3582(c)(2)). While outside the scope of § 3582(c)(2), petitioner's claim is more appropriately raised ina § 2255 motion. United States v. Smith, 241 F.3d 546, 548 (7th Cir. 2001).
District courts should not sua sponte recharacterize a post conviction petition as a § 2255 motion; however, this rule applies when the recharacterized petition would be a first § 2255 motion. United States v. Torres, 282 F.3d 1241, 1245 (10th Cir. 2002); See also Castro v. United States, 124 S.Ct. 786, 792 (2002) (Court must warn pro se litigant about consequences of recharacterizing a motion as a first § 2255 motion). "Our concern in those cases — that characterizing a petition as an initial § 2255 might prevent a prisoner from raising a legitimate claim in a subsequent § 2255 petition — does not apply where, as in this case, the petitioner previously filed a § 2255 petition. Indeed, to allow a petitioner to avoid the bar against successive § 2255 petitions by simply styling a petition under a different name would severely erode the procedural restraints imposed under § 2244(b)(3) and § 2255." Torres 282 F.3d at 1246. This motion will be construed as petitioner's second § 2255 petition.
Under 28 U.S.C. § 2255, a second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain —
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant 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
Under 28 U.S.C. § 2244(b)(3)(A), an applicant shall move the appropriate court of appeals for an order authorizing the district court to consider a second or successive application for relief under § 2255. See Leonard v. United States, 383 F.3d 1146, 1149 (10th Cir. 2004). The record shows that petitioner failed to obtain authorization from the Tenth Circuit Court of Appeals to file this successive § 2255 motion; therefore, we lack jurisdiction to consider the merits. See United States v. Avila-Avila, 132 F.3d 1347, 1348-1349 (10th Cir. 1997).
When a petitioner files a second § 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).
IT IS ORDERED FOR THE REASONS SET FORTH ABOVE that Defendant's motion for relief under the provisions of 18 U.S.C. Section 3582 (Doc. 249) be treated as a successive motion for relief pursuant to 28 U.S.C. § 2255 and be transferred to the Tenth Circuit Court of Appeals pursuant to 28 U.S.C. § 1631;
IT IS FURTHERED ORDERED that the Clerk of the Court shall forward a copy of the petitioner's motion (Doc. 249) to the Clerk of the Tenth Circuit Court of Appeals for processing under 28 U.S.C. § 2244(b)(3).
SO ORDERED.