United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING MOTION TO
MATTER is before the Court under Rule 4 of the Rules
Governing Section 2255 Proceedings on the Motion to Correct
Sentence filed by Defendant, Vernon Earl Coleman on March 29,
2017 (Doc. 162). The Court will dismiss the Motion for lack
of jurisdiction and deny a Certificate of Appealability.
March 9, 2017, the Court entered an Order to Show Cause Why
Filing Restrictions Should Not Be Imposed. (Doc. 159). In the
Order to Show Cause, the Court set out Coleman's lengthy
pattern of filing improper post-conviction attacks on his
sentence, and gave Coleman thirty days to show cause why
filing restrictions should not be imposed. Coleman filed his
Response to the Order to Show Cause on March 17, 2017 (Doc.
160). Then Coleman immediately filed this additional, abusive
attack on his conviction before entry of the Court's
Order Imposing Filing Restrictions on April 3, 2017. (Doc.
160, 162, 163). Because the Motion to Correct Sentence was
filed prior to the Court's Order Imposing Filing
Restrictions, the Court will conduct the preliminary review
of Coleman's Motion as required by Rule 4 of the Rules
Governing Section 2255 Proceedings. However, the Court
notifies Coleman that he is now under filing restrictions in
this Court and may proceed in the future only in compliance
with the terms and conditions of the Court's April 3,
2017 Order Imposing Filing Restrictions. (Doc. 163).
was charged with possession with intent to distribute 100
kilograms and more of marijuana in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1). (Doc. 1). Coleman pled
guilty to the charge without a plea agreement. (Doc. 75). On
August 12, 2011, the Court sentenced him to 164 months of
incarceration followed by 4 years of supervised release.
(Doc. 76). Coleman appealed to the United States Court of
Appeals for the Tenth Circuit and the Judgment was affirmed
on June 11, 2012. (Doc. 91). The United States Supreme Court
denied certiorari. (Doc. 93).
filed his first motion to vacate, set aside, or correct
sentence under 28 U.S.C. § 2255 on December 31, 2012.
(Doc. 94). His § 2255 motion raised issues of
ineffective assistance of counsel and error by the Court in
pre-sentence evidentiary rulings. (See Doc. 94). The
Magistrate Judge entered Proposed Findings and a Recommended
Decision, recommending denial of relief and dismissal of the
motion. (Doc. 103). The Court adopted the Magistrate
Judge's Proposed Findings and Recommended Decision,
denying the motion and dismissing with prejudice on June 6,
2013. (Doc. 105, 107). Coleman filed a motion for
reconsideration on December 9, 2014, which was also denied by
the Court. (Doc. 114, 116). Coleman appealed the ruling on
the motion for reconsideration and was denied a certificate
of appealability by the Tenth Circuit Court of Appeals on May
22, 2015. (Doc. 122).
filed his second § 2255 Motion on July 25, 2016. (Doc.
139). In his Motion, Coleman argued he is entitled to a
sentence reduction based on a “minor role”
amendment to Section 3B1.2 of the United States Sentencing
Guidelines. (Doc. 139 at 1-2). The Motion was dismissed as a
second or successive § 2255 motion filed without
authorization from the United States Court of Appeals for the
Tenth Circuit and Coleman was advised that, absent Tenth
Circuit authorization, a district court has no jurisdiction
to even consider a second or successive 2255 motion. (Doc.
145). See In re Cline, 531 F.3d 1249, 1251
(10th Cir. 2008); Stanko v. Davis, 617
F.3d 1262, 1265 (10th Cir. 2010).
filed his current Motion to Correct Sentence on March 29,
2017. (Doc. 162). Although he does not cite 28 U.S.C. §
2255, Coleman seeks correction of what he incorrectly claims
to be an error in his sentencing. The exclusive remedy for
testing the validity of a judgment and sentence is the remedy
provided in 28 U.S.C. § 2255. Bradshaw v.
Story, 86 F.3d 164, 166 (10th Cir. 1996). The
Court will construe Coleman's Motion as a successive
§ 2255 motion. See, e.g., Peach v. United
States, 468 F.3d 1269, 1270 (10th Cir.
2255 requires that a second or successive § 2255 motion
be certified in accordance with § 2244 by a panel of a
court of appeals to contain: (1) newly discovered evidence
that 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 that was previously unavailable and was
made retroactive to cases on collateral review by the Supreme
Court. 28 U.S.C. § 2255(h). Section 2244 also requires
that, before a second or successive application is filed in
the district court, the applicant shall move the appropriate
court of appeals for an order authorizing the district court
to consider the application. 28 U.S.C. § 2244(b)(3)(A).
Coleman's Motion to Correct Sentence is yet another
§ 2255 motion filed without Tenth Circuit authorization
as required by § 2244(b)(3)(A). As Coleman has already
been advised, the Court lacks jurisdiction to consider his
Motion absent the requisite authorization. (Doc. 145).
second or successive § 2255 motion is filed in the
district court without the required authorization from a
court of appeals the district court may dismiss or may
transfer the matter to the court of appeals if it determines
it is in the interest of justice to do so pursuant 28 U.S.C.
§ 1631. See In re Cline, 531 F.3d at 1252.
Under Cline, one of the factors the Court may
consider in determining whether to transfer is whether the
claims alleged are likely to have merit. Cline, 531
F.3d at 1251. Because Coleman has filed his Motion long after
his sentence became final, in order to proceed on his
successive § 2255 motion, Coleman would need to present
grounds for relief based on a new rule of constitutional law
made retroactively applicable on collateral review. 28 U.S.C.
§ 2255(h). Coleman presents no such grounds. Instead,
Coleman makes the same argument he has made in many of his
previous filings that the sentence imposed on him is
inconsistent with the Court's rulings made at his
sentencing hearing. (Doc. 162). As the Tenth Circuit clearly
advised Coleman, his arguments are procedurally and
substantively incorrect. See Tenth Circuit Order and
Judgment of September 13, 2016. (Doc. 140-1). Applying
Cline, the Court finds Coleman's allegations
will not have any merit and it is not in the interests of
justice to transfer this matter to the Tenth Circuit Court of
does not meet the requirements to obtain authorization for a
second or successive §2255 motion. 28 U.S.C. §
2255(h)(2). The Court determines that it lacks jurisdiction
to consider Coleman's successive § 2255 motion and
it is not in the interests of justice to transfer his filing
to the Tenth Circuit. In re Cline, 531 F.3d 1249,
1252. The Court also determines, sua sponte under
rule 11(a) of the Rules Governing Section 2255 Proceedings,
that Coleman has failed to make a substantial showing he has
been denied a constitutional right under 28 U.S.C. §
2253(c)(2). The Court will deny a certificate of
ORDERED that Movant Vernon Earl Coleman's Motion to
Correct Sentence (Doc. 162) is DISMISSED for lack of
jurisdiction, a certificate of ...