United States District Court, D. New Mexico
A. Tierney Acting United States Attorney Samuel A. Hurtado
Assistant United States Attorney United States Attorney's
Office Albuquerque, New Mexico Attorneys for the
Bowles Bowles Law Firm Albuquerque, New Mexico Attorney for
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on: (i) the
Petitioner, Mckenzie's Second Supplemental Motion to His
Request for Habeas Relief Under Title 28 U.S.C. § 2255,
filed April 3, 2017 (CIV Doc. 18; CR Doc. 234)(“Second
Supplemental Motion”); and (ii) the Petitioner,
Mckenzie's Motion for Leave to Construe His Motion to
Amend His § 2255 Petition Under Rule 15(c) to a Motion
for Reconsideration Under Rule 59(e), filed April 13, 2017
(CIV Doc. 19; CR Doc. 235)(“Motion for Leave”).
The Court declines to reconsider its prior dismissal of
Defendant/Movant Richard McKenzie's § 2255
proceeding and dismisses his Second Supplemental Motion as a
second or successive § 2255 motion filed without the
United States Court of Appeals for the Tenth Circuit's
authorization. The Court will, however, transfer
McKenzie's Second Supplemental Motion to the United
States Court of Appeals for the Tenth Circuit in the
interests of justice.
AND PROCEDURAL BACKGROUND
filed his Motion to Correct Sentence under 28 U.S.C. §
2255 on June 22, 2016. See Motion to Correct
Sentence Under 28 U.S.C. § 2255, filed June 22, 2016
(CIV Doc. 1; CR Doc. 219)(“Motion to Correct”).
In his Motion to Correct, McKenzie sought to have the Court
set aside his sentence under the Supreme Court of the United
States' decision in Johnson v. United States,
135 S.Ct. 2551 (2015)(“Johnson”).
See Motion to Correct at 2. McKenzie then filed a
Supplemental Motion to Correct Sentence under 28 U.S.C.
§ 2255, filed August 9, 2016 (CIV Doc. 6; CR Doc.
223)(“Supplemental Motion to Correct”). In his
Supplemental Motion to Correct, McKenzie claimed that the
Court should apply the Johnson holding to invalidate
his sentence under U.S.S.G. §§ 4B1.1 and 4B1.2.
See Supplemental Motion to Correct at 3. As the
Court's docket reflects, counsel represented McKenzie in
the proceedings on his Motion to Correct and Supplemental
Motion to Correct.
March 6, 2017, the Supreme Court issued its ruling in
Beckles v. United States, 137 S.Ct. 886
(2017)(“Beckles”). In Beckles,
the Supreme Court held that the United States Sentencing
Guidelines, U.S.S.G. §§ 4B1.1 and 4B1.2, are not
subject to a void-for-vagueness challenge. See 137
S.Ct. at 897. The Honorable Karen B. Molzen, Chief United
States Magistrate Judge, entered an Order on March 9, 2017,
directing the parties to address whether the Supreme
Court's ruling in Beckles disposed of all claims
in the Motion to Correct and Supplemental Motion to Correct.
See Order Lifting Stay and Directing the Parties to
Confer and File a Joint Statement in Light of
Beckles, filed December 30, 2016 (CIV Doc. 14; CR
Doc. 230). The United States filed a statement on March 14,
2017, which stated: “[T]he parties have conferred and
agree that the Supreme Court's ruling in Beckles
is dispositive of all issues raised in Defendant's
pending §2255 motion. Therefore, Defendant's motion
pursuant to 28 U.S.C. § 2255 should be dismissed with
prejudice.” Proposed Joint Statement, filed March 14,
2017 (CIV Doc. 15; CR Doc. 231). The Court entered its
Memorandum Opinion and Order and Judgment dismissing the
Motion to Correct and Supplemental Motion to Correct with
prejudice on March 28, 2017. See Memorandum Opinion
and Order, filed March 28, 2017 (CIV Doc. 16; CR Doc. 232);
Final Judgment, filed March 28, 2017 (CIV Doc. 17; CR Doc.
acting pro se, filed his Second Supplemental Motion on April
3, 2017. See Second Supplemental Motion at 1. In his
Second Supplemental Motion, McKenzie sought to amend his
Motion to Correct on the grounds that his underlying
controlled substance and robbery convictions should no longer
qualify as predicate offenses “under U.S.S.G. §
4B1.1 and 4B1.1(a)(b)” based on the Supreme Court's
decision in Mathis v. United States, 136 S.Ct. 2243
(2016)(“Mathis”). Motion to Correct at
3. On April 13, 2017, McKenzie then filed his Motion for
Leave. See Motion for Leave at 1.
REGARDING RECONSIDERATION AND SUCCESSIVE § 2255
Federal Rules of Civil Procedure govern post-judgment
motions. 28 U.S.C. §§ 2244, 2255 govern second or
successive motions to correct a sentence. The Court will
address each set of rules in turn.
Motions for Reconsideration.
59(e) of the Federal Rules of Civil Procedure governs
post-judgment motions for reconsideration, which are
considered to be motions to alter or to amend the judgment.
See Brumark Corp. v. Samson Resources Corp., 57 F.3d
941, 948 (10th Cir. 1995)(“Brumark
Corp.”). Rule 59(e) provides that “[a]
motion to alter or amend a judgment must be filed no later
than 28 days after entry of judgment.” Fed.R.Civ.P.
warranting reconsideration under rule 59(e) include: (i) an
intervening change in the controlling law; (ii) new evidence
previously unavailable; and (iii) the need to correct clear
error or prevent manifest injustice. See Brumark
Corp., 57 F.3d at 948. A motion for reconsideration is
proper where the court has clearly misapprehended the facts,
a party's position, or the controlling law, but is not
appropriate to revisit issues already addressed in prior
filings. See Van Skiver v. United States, 952 F.2d
1241, 1243 (10th Cir. 1991); Servants of Paraclete v.
Does, 204 F.3d 1005, 1012 (10th Cir. 2000).
Second or Successive § 2255 Motions.
2255 provides that a United States Court of Appeals panel
must certify a second or successive motion in accordance with
§ 2244 to contain: (i) 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 (ii) a new rule of
constitutional law that was previously unavailable and the
Supreme Court made retroactive to cases on collateral review.
See 28 U.S.C. § 2255(h). Section 2244 requires
that, before a second or successive application is filed in
the district court, the ...