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United States v. McKenzie

United States District Court, D. New Mexico

February 9, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
RICHARD MCKENZIE, Defendant/Movant.

          James A. Tierney Acting United States Attorney Samuel A. Hurtado Assistant United States Attorney United States Attorney's Office Albuquerque, New Mexico Attorneys for the Respondent/Plaintiff

          Jason Bowles Bowles Law Firm Albuquerque, New Mexico Attorney for the Movant/Defendant

          MEMORANDUM OPINION AND ORDER

         THIS 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         McKenzie 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.

         On 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. 233).

         McKenzie, 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.

         LAW REGARDING RECONSIDERATION AND SUCCESSIVE § 2255 MOTIONS

         The 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.

         1. Motions for Reconsideration.

         Rule 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. 59(e).

         Grounds 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).

         2. Second or Successive § 2255 Motions.

         Section 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. ยง 2255(h). Section 2244 requires that, before a second or successive application is filed in the district court, the ...


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