Opinion
Case No. 99-40091-JAR, 02-3174-JAR
May 1, 2003.
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION
This matter is before the Court on defendant's motion for relief alleging false imprisonment, wrongful accusation and ineffective assistance of counsel (Doc. 98). No response was filed. After consideration of defendant's arguments and applicable law, the Court is prepared to rule. For the following reasons, defendant's Motion to Dismiss is denied.
Defendant's challenges are essentially that the government did not prove his guilt under Count V of his indictment and that his attorney did not object to his being charged under Count V. In light of that, Defendant believes his guilty verdict by the jury and sentencing resulted in his being wrongfully incarcerated on Count V. The Court's interpretation of these arguments is one for sufficiency of the evidence for his conviction and ultimately, his sentence, as well as a challenge to his attorney's effectiveness in allowing a trial to proceed on Count V. These are all attacks on his sentence, either directly or indirectly. As such, the Court will construe such an appeal as a collateral attack under 28 U.S.C. § 2255.
Because petitioner filed his petition for habeas relief after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), the AEDPA applies to his petition. See generally Lindh v. Murphy, 521 U.S. 320 (1997).
The Tenth Circuit has addressed how a court should proceed when characterizing a motion filed under other premises as a § 2255. In United States v. Kelly, the court vacated and remanded a district court decision which interpreted a motion to vacate under Fed.R.Crim.P. 32 as a motion under § 2255. The court looked to other circuits in deciding whether the characterization was appropriate and what procedure a court should adopt in doing so. In Kelly, the defendant brought his motion to vacate before filing a petition under § 2255. Thus, if the district court characterized his motion as a § 2255, it would effectively bar that defendant from bringing other claims under a motion for relief through § 2255. The Tenth Circuit found this unacceptable where the defendant did not intend to include all of his claims in the motion to vacate and intended to later proceed with a motion under § 2255. The court held that if the district court chose to characterize the motion as a § 2255 it first needed to notify the defendant to give him an opportunity to cure, either by converting it to a § 2255 to include all claims, or re-file it in a manner that it could not be characterized as a habeas. The Tenth Circuit did not disagree with the characterization of defendant's motion, as it agreed that defendant could not obtain the relief he sought by way of Rule 32. However, the court sought to prevent the defendant from losing his opportunity to bring all of his claims under § 2255.
235 F.3d 1238 (10th Cir. 2000)
Id. at 1241.
While Kelly is binding precedent, it is also distinguishable. The defendant here has already filed a motion under § 2255, which was denied by this court on March 19, 2003. Any claims defendant had should have been brought in that petition. A successive § 2255 motion is one that 1) repeats claims already decided on the merits or 2) abusively brings a new ground unjustifiably omitted from a prior petition. The relief defendant seeks now, and basis for that relief, were available to him in the § 2255 petition. By this Court characterizing his motion as a § 2255, and not notifying defendant of its intention to do so, defendant is not denied any right of appeal. He has already taken his bite of the apple and cannot now circumvent the rule against successive § 2255 filings, absent a certificate from the court of appeals, by placing a different label on his motion.
Id. at 1241 (citations and quotations omitted).
If defendant had not filed his § 2255, and he was still within the statutory time limit to do so, this Court would without question notify him of the characterization to prevent any injustice or denial of his right to appeal through habeas. However, defendant no longer has this right. Accordingly, defendant's motion is denied.
The only avenue by which defendant can file this second petition under § 2255 is to first obtain a certificate from the Tenth Circuit, authorizing this Court to consider his petition. As such, the interests of justice mandate that this matter be transferred to the Tenth Circuit Court of Appeals pursuant to 28 U.S.C. § 1631.
Coleman v. United States, 106 F.3d 399, 341 (10th Cir. 1997).
IT IS THEREFORE ORDERED that the defendant's motion (Doc. 98), construed as a § 2255 filing, is denied.