Opinion
04-10174-JWB
07-14-2023
UNITED STATES OF AMERICA, Plaintiff, v. BRUCE SEARS, Defendant.
MEMORANDUM AND ORDER
JOHN W. BROOMES UNITED STATES DISTRICT JUDGE
This matter is before the court on Defendant's motion to vacate sentence under 28 U.S.C. § 2255 (Doc. 212) and motion to correct the record (Doc. 214). The § 2255 motion is fully briefed and is ripe for decision. (Docs. 213, 215.) For the reasons stated herein, the § 2255 motion is DISMISSED for lack of jurisdiction and the motion to correct the record is DENIED as moot.
I. Background
In 2005, Defendant was sentenced to life imprisonment following trial and conviction on one count of robbery in violation of 18 U.S.C. § 1951, one count of brandishing a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c), and two counts of possession of a firearm by a convicted felon on violation of 18 U.S.C. § 922(g)(1). (Doc. 61.) The judgment was affirmed on direct appeal. (Doc. 94.)
Defendant has since filed a number of motions challenging or seeking relief from his conviction and/or sentence, including several motions that were either denominated as motions for relief under 28 U.S.C. § 2255 or were treated as such by the court. (See Docs. 100, 139, 148, 153, 154, 159, 160, 191, 194.)
Defendant's latest § 2255 motion challenges whether the Kansas robbery convictions that were used to enhance his sentence meet the definition of “violent felony” under 18 U.S.C. § 3559(c). The motion is based in part on the Supreme Court's ruling in United States v. Borden, 141 S.Ct. 1825 (2021), which held that a prior conviction does not count as a “violent felony” under the Armed Career Criminal Act (18 U.S.C. § 924(e)) if the crime only required a mental state of recklessness. Defendant argues his prior Kansas robbery convictions fall into that category. (Doc. 212 at 5-6.)
Defendant's motion recognizes the prohibition in § 2255(h) on filing second or successive § 2255 motions in a district court without certification by the court of appeals, but it argues the instant motion “is a second-try or second-in-time to a previous [§ 2255] motion” and is therefore not subject to the prohibition. (Doc. 212 at 5.)
II. Standards
Section 2255(h) of Title 28 of the United Stated Code provides in part:
A second or successive motion must be certified .. 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.
Because of this provision, “[a] district court does not have jurisdiction to address the merits of a second or successive § 2255 . until [the Tenth Circuit Court of Appeals] has granted the required authorization.” In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008).
The limit on second or successive habeas motions is designed to prevent serial challenges to a judgment of conviction, and thereby reduce delay, conserve judicial resources, and promote finality. See Banister v. Davis, 140 S.Ct. 1698, 1707 (2020). The phrase “second or successive” does not necessarily apply to all motions filed later in time. For example, a properly amended habeas petition is not second or successive, nor is an appeal of a habeas court judgment. Id. Also, a later motion bringing a claim that was not ripe when a defendant filed his first motion is not considered second or successive. See Panetti v. Quarterman, 551 U.S. 930, 946-47 (2007).
III. Analysis
Defendant's § 2255 motion challenges the validity of his sentence subsequent to his filing of prior § 2255 motions attacking the sentence. Defendant makes no showing that his claim involves newly discovered evidence or relies on a new rule of constitutional law made retroactive by the Supreme Court. It is thus subject to the restriction on second or successive § 2255 motions. Defendant argues that this claim falls within the Panetti exception because it invokes the Supreme Court's recent interpretation of the term “violent felony” in United States v. Borden, 141 S.Ct. 1825 (2021). But “[a] federal prisoner may not ... file a second or successive § 2255 motion based solely on a more favorable interpretation of statutory law adopted after his conviction became final and his initial § 2255 motion was resolved.” Jones v. Hendrix, No. 21-857, 2023 WL 4110233, at *4 (U.S. June 22, 2023).
IV. Conclusion
Defendant's motion to vacate sentence under 28 U.S.C. § 2255 (Doc. 212) is DISMISSED for lack of jurisdiction. Defendant's motion to correct the record (Doc. 214), which seeks to add the phrase “second-in-time” to the § 2255 motion, is DENIED as moot.
An appeal from a final order on a § 2255 motion may not be taken absent a certificate of appealability, which may issue only if a petitioner has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The court concludes Defendant has failed to make such a showing and accordingly a certificate of appealability is DENIED.
IT IS SO ORDERED