Opinion
Civil Case No. 12-4071-SAC Criminal Case No. 00-40024-03-SAC
06-25-2012
UNITED STATES OF AMERICA, Plaintiff/Respondent, v. TIMOTHY J. CLINE, Defendant/Movant.
MEMORANDUM AND ORDER
The case comes before the court once again on a post-conviction motion of the defendant Timothy J. Cline. (Dk. 2132). The defendant argues that his conviction and sentence should be set aside on the retroactive application of DePierre v. United States, 131 S. Ct. 2225 (June 9, 2011), and that his 28 U.S.C. § 2255 motion is timely under § 2255(f)(3) in that it asserts a right "initially recognized" by DePierre and "made retroactively applicable to cases on collateral review." The defendant's motion is devoid of any legal or factual merit.
In order to file a second or successive § 2255 motion in the district court, the movant must obtain prior authorization from the Tenth Circuit. See 28 U.S.C. § 2244(b)(3)(A). Because the defendant did not seek prior authorization from the Tenth Circuit before filing his latest § 2255 motion, the district court either "may transfer the matter to . . . [the Tenth Circuit] if it determines it is in the interest of justice to do so under [28 U.S.C. § 1631], or it may dismiss the motion or petition for lack of jurisdiction." In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008). In exercising this discretion, the court considers such factors as whether "the claims are likely to have merit, . . . [whether] the original action was filed in good faith rather than filed after plaintiff either realized or should have realized that the forum in which he or she filed was improper." Trujillo v. Williams, 465 F.3d 1210, 1223 n.16 (10th Cir. 2006) (internal quotation marks and citations omitted). With regards to the defendant/movant in the instant case, the Tenth Circuit already has observed: "In Mr. Cline's case, courts have repeatedly explained to him the statutory authorization requirements of §§ 2255(h) and 2244(b) . . . ." Id. at 1252.
Because the defendant's most recent § 2255 filing is frivolous, the court will dismiss the motion for lack of jurisdiction instead of transferring it. The Supreme Court's decision in DePierre does not come with the narrow terms of § 2255(h)(2), as it did not establish "a new rule of constitutional law," nor did it make any such rule "retroactive to cases on collateral review." The Court in DePierre simply held that "the term 'cocaine base' as used in § 841(b)(1) means not just 'crack cocaine,' but cocaine in its chemically basic form." 131 S. Ct. at 2237. The defendant offers no plausible argument for how DePierre deals with any issues or creates any rules bearing on the constitutional requirements for drug identity and quantity findings necessary for conviction or sentencing. See Arnold v. Ask-Carlson, 2012 WL 1309190 at *2 (W.D. La.), adopted by, 2012 WL 1309185 (W.D. La. 2012). DePierre "has not been recognized or declared a retroactively applicable Supreme Court decision." Wilson v. United States, 2011 WL 6308907 at *3 (W.D. La.), adopted by, 2011 WL 6308440 (W.D. La. 2011); see United States v. Crump, 2012 WL 604140 at *2 (W.D. Va. 2012). Even if DePierre cleared the § 2255(h)(2) hurdle, it has no application to the defendant's case. "The defendant offers nothing to suggest that the definition of "cocaine base" settled in DePierre would have any bearing on any factual or legal issues in his case." United States v. Sharkey, 2011 WL 3611460 at *2 (D. Kan. Aug. 17, 2011). Shown to be frivolous, the defendant's motion is not transferred to the Tenth Circuit pursuant to 28 U.S.C. § 1631 for a certification decision under § 2255(h), but it is dismissed for lack of jurisdiction.
IT IS THEREFORE ORDERED that because the defendant's motion (Dk. 2131) is an unauthorized second or successive § 2255 motion, the motion is dismissed for lack of jurisdiction.
Dated this 25th day of June, 2012, Topeka, Kansas.
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Sam A. Crow, U.S. District Senior Judge