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Thompson v. United States

United States District Court, D. New Mexico

June 28, 2019

ALFONSO THOMPSON, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          Alfonso Thompson United States Penitentiary, Victorville Victorville, California Plaintiff pro se

          John C. Anderson United States Attorney Paige Messec Assistant United States Attorney United States Attorney's Office Albuquerque, New Mexico Counsel for the Defendant

          MEMORANDUM OPINION AND ORDER OF DISMISSAL

         THIS MATTER is before the Court on Petitioner's Pleading Pursuant to Fed.R.Civ.P. 60(b)(6), filed December 3, 2019 (Doc. 1 in No. CIV 18-1155 JB\CG)(Doc. 125 in No. CR 12-3013 JB\CG)(“Second Motion”). The Court dismisses the Second Motion as a second or successive 28 U.S.C. § 2255 motion filed without authorization.

         FACTUAL AND PROCEDURAL BACKGROUND

         Movant Alfonso Thompson pled guilty and was sentenced to 180 months of imprisonment for possession of a firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). See Plea Agreement at ¶¶ 3, 8, 13, 24, at 2-3, 5, 8, filed July 2, 2014 (Doc. 75); Judgment in a Criminal Case at 1-2, filed October 20, 2014 (Doc. 92). Thompson filed his first motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 on June 26, 2016. See Motion to Correct Sentence Pursuant to Johnson v. United States and Under the Auspices of 28 U.S.C. § 2255, filed June 26, 2016 (Doc. 1 in No. CIV 16-0713 LH\CG)(Doc. 97 in No. CR 12-3013 JB\CG)(“First Motion”). In his First Motion, Thompson sought to have his sentence set aside on the basis of the ruling of the Supreme Court of the United States in Johnson v. United States, 135 S.Ct. 2551 (2015)(“Johnson”), because he contended he did not have the three required crimes of violence necessary to support an Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”), enhancement under 18 U.S.C. § 924(e). See First Motion at 1, 3-5. On January 9, 2017, the Honorable Curtis LeRoy Hansen, United States District Judge for the United States District Court for the District of New Mexico, entered a Memorandum Opinion and Order, filed January 19, 2017 (Doc. 12 in CIV 16-0713 LH\CG)(Doc. 107 in No. CR 12-3013 JB\CG)(“MOO”), adopting the Proposed Findings and Recommended Disposition, filed November 8, 2016 (Doc. 8 in CIV 16-0713 LH\CG)(Doc. 103 in CR 12-3013 JB\CG)(“PFRD”), of of the Honorable Carmen E. Garza, United States Magistrate Judge for the United States District Court for the District of New Mexico, and dismissed Thompson's First Motion, see MOO at 5; Final Judgment at 1, filed January 19, 2017 (Doc. 13 in No. CIV 16-0713 LH\CG)(Doc. 108 in No. CR 12-3013 JB\CG). In the MOO, Judge Hansen concludes that Thompson's convictions for attempted first-degree murder were force clause offenses, rather than residual clause offenses, and Thompson was not eligible for resentencing under Johnson. See MOO at 3-5. Judge Hansen also denied Thompson a certificate of appealability. See PFRD at 9; MOO at 5. Thompson then sought a certificate of appealability from the United States Court of Appeals for the Tenth Circuit. See Notice of Appeal at 1-2, filed February 3, 2017 (Doc. 14 in No. CIV 16-0713 LH\CG)(Doc. 109 in No. CR 12-3013 JB\CG). The Tenth Circuit denied a certificate of appealability, determining that Judge Hansen was correct in concluding that Thompson had failed to demonstrate eligibility for relief under § 2255. See Order Denying a Certificate of Appealability at 1, 3-8, filed January 9, 2018 (Doc. 27 in No. CIV 16-0713 LH\CG)(Doc. 122 in No. CR 12-3013 JB\CG). The Supreme Court denied certiorari. See Letter from Scott S. Harris to Clerk at 1 (dated October 1, 2018), filed October 1, 2018 (Doc. 29 in No. CIV 16-0713 LH\CG)(Doc. 124 in No. CR 12-3013 JB\CG).

         Thompson then filed his Second Motion. See Second Motion at 8 (dating Second Motion November 26, 2018). As set out below, the Court construes the Second Motion as a second § 2255 motion to vacate, set aside, or correct by a person in federal custody. In Thompson's Second Motion, he contends:

Petitioner now posits that the sentence is substantively unreasonable for two reasons, because Mr. Thompson's base offense level is incorrectly calculated and that in fact he does not have the necessary three predicated [sic] offenses as stated in the [Presentence Investigation Report (“PSR”)]. In addition no documented evidence was ever produced by the PSR or government that demonstrated petitioner had [sic] intervening arrest associated with the New Mexico convictions. In fact, the record is devoid of these facts ever being presented by any party prior to or during sentencing. Petitioner now offers various mitigating circumstances which justifies removal of the ACCA enhancement because Thompson did not qualify with the necessary three predicated [sic] offenses.

         Second Motion at 4.

         THE LAW GOVERNING SECOND OR SUCCESSIVE § 2255 MOTIONS

         As a threshold matter, the Court must determine whether Thompson's Second Motion is a “true” Rule 60(b) motion, or, instead, a second or successive § 2255 motion. See Gonzalez v. Crosby, 545 U.S. 524, 530-31 (2005)(“Gonzalez”); Spitznas v. Boone, 464 F.3d 1213, 1215 (10th Cir. 2006). “Under Gonzalez, a 60(b) motion is a second or successive petition if it in substance or effect asserts or reasserts a federal basis for relief from the petitioner's underlying conviction or sentence.” See Spitznas v. Boone, 464 F.3d at 1215 (citing Gonzalez, 545 U.S. at 537-38). Conversely, it is a “true” 60(b) motion if it either: (i) challenges only a procedural ruling of the court which precluded a merits determination of the § 2255 motion; or (ii) challenges a defect in the integrity of the § 2255 proceeding, provided that such a challenge does not itself lead inextricably to a merits-based attack on the disposition of a prior petition. Spitznas v. Boone, 464 F.3d at 1215 (citing Gonzalez, 545 U.S. at 532, 532 n.4). A rule 60(b) motion that asserts or reasserts a federal basis for relief from the underlying conviction or sentence should be treated as second or successive habeas petition. Gonzalez, 545 U.S. at 532.

         The statute governing federal habeas corpus proceedings provides:

No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus, except as provided in section 2255.

28 U.S.C. § 2244(a). Section 2255 states that a Court of Appeals panel must certify a second or successive motion to contain in accordance with § 2244: (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 that the Supreme Court made retroactive to cases on collateral review. See 28 U.S.C. § 2255(h); 28 U.S.C. § 2244(b)(3). Section 2244 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. See 28 U.S.C. § 2244(b)(3). A district court lacks jurisdiction to consider a second or successive motion absent the requisite authorization. See 28 U.S.C. § 2255(h); 28 U.S.C. § 2244(b)(3); In reCline, 531 F.3d 1249, 1252 (10th Cir. 2008). When a second or successive ยง 2255 motion is filed in the district court ...


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