Ward-Malone v. United States of America

Filing 13

INITIAL REVIEW ORDER denying 2 Pro Se Motion to Vacate/Set Aside/Correct Sentence (2255) (Criminal Action CR12-4068-LTS-KEM-2); denying as moot 1 Pro Se Motion for Leave to Proceed in forma pauperis, 8 Pro Se Motion for Leave to Amend, 10 Pro Se Motion for Expedited Relief, and 11 Pro Se Motion for Summary Judgment. This case is dismissed. A certificate of appealability will not issue. Signed by Chief Judge Leonard T Strand on 11/19/2020 (copy w/NEF mailed to Plt). (skm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
CHRISTOPHER J. WARD-MALONE,
Petitioner,

No. C19-4075-LTS
(Crim. No. CR12-4068-LTS)

vs.
UNITED STATES OF AMERICA,

INITIAL
REVIEW ORDER

Respondent.
___________________________
This matter is before me on a pro se 28 U.S.C. § 2255 motion (Doc. 2) filed by
Christopher J. Ward-Malone. He has also filed a motion to proceed in forma pauperis
(Doc. 1), two supplements to his petition (Doc. 6, 9), a motion to amend his petition to
include newly discovered evidence (Doc. 8), a motion for expedited relief (Doc. 10) and
a motion for summary judgment (Doc. 11).
Ward-Malone’s case history is somewhat complicated. On June 21, 2012, the
Grand Jury returned a multi-count indictment charging him with conspiracy to distribute
crack cocaine and methamphetamine (Count 1) and distribution of methamphetamine
(Count 5). Crim. Doc. 3. A superseding indictment was filed on July 19, 2012, but the
counts against Ward-Malone remained unchanged.

Crim. Doc. 26.

Ward-Malone

subsequently pleaded guilty to Count 1s (Crim. Doc. 55–56, 61) of the superseding
indictment, and on March 26, 2013, United States District Judge Mark W. Bennett
sentenced him to a 170-month term of imprisonment to be followed by five years of
supervised release. Crim. Doc. 94, 96, 98.
On August 30, 2013, the court received a pro se notice of appeal (Crim. Doc.
102) from Ward-Malone. However, because Ward-Malone’s appeal was filed over five

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months after his sentencing, the Eighth Circuit dismissed it as untimely. Crim. Doc.
116, 120.
Ward-Malone has also attempted to challenge his conviction and sentence through
multiple habeas petitions. The court received Ward-Malone’s first § 2255 petition on
November 21, 2013. No. C13-4111-MWB, Doc. 1. Judge Bennett found no grounds
for relief under § 2255 and denied the petition in its entirety on May 11, 2016. No. C134111-MWB, Doc. 41–42. On July 9, 2018, the court received a pro se motion to file an
untimely appeal (Crim. Doc. 149), which Judge Bennett construed as a new § 2255
petition (No. C18-4061, Doc. 1). The Eighth Circuit subsequently denied (Crim. Doc.
153–54) Ward-Malone’s request to file that second or successive § 2255 petition,
however, and Judge Bennett dismissed it on November 6, 2018. No. C18-4061, Doc. 4.
On January 2, 2019, Ward-Malone filed a pro se habeas petition under 28 U.S.C. § 2241.
No. C19-4001-CJW, Doc. 1. Finding that the § 2241 petition was merely an attempt to
circumvent § 2255’s requirements for second or successive petitions, United States
District Judge C.J. Williams dismissed it on January 7, 2019. No. C19-4001-CJW, Doc.
2. The court then received Ward-Malone’s present § 2255 petition on October 25, 2019.
Doc. 1.
I.

§ 2255 INITIAL REVIEW STANDARD

Rule 4(b) of the Rules Governing Section 2255 Proceedings requires the court to
conduct an initial review of the motion and dismiss the motion if it is clear that it cannot
succeed. Three reasons generally give rise to a preliminary Rule 4(b) dismissal. First,
summary dismissal is appropriate when the allegations are vague or conclusory, palpably
incredible, or patently frivolous or false. See Blackledge v. Allison, 431 U.S. 63, 75–76
(1977).
Second, summary dismissal is appropriate when the motion is beyond the statute
of limitations. Section 2255(f) states that a one-year limitations period shall apply to
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motions filed under 28 U.S.C. § 2255. See, e.g., Taylor v. United States, 792 F.3d 865,
869 (8th Cir. 2015). The limitation period shall run from the latest of (1) the date on
which the judgment of conviction becomes final; (2) the date on which the impediment
to making a motion created by governmental action in violation of the Constitution or
laws of the United States is removed, if the movant was prevented from making a motion
by such governmental action; (3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on collateral review; or (4) the date on
which the facts supporting the claim or claims presented could have been discovered
through the exercise of due diligence. 28 U.S.C. § 2255(f). The most common limitation
period is the one stemming from final judgment. If no appeal is taken, judgment is final
fourteen days after entry.

See Federal Rule of Appellate Procedure 4(b) (giving

defendants fourteen days to file a notice of appeal in a criminal case). If an appeal is
taken, the time to file begins to run either 90 days after the denial if no further appeal is
taken or at the denial of certiorari if a petition for certiorari is filed. See Clay v. United
States, 537 U.S. 522, 532 (2003) (“We hold that, for federal criminal defendants who
do not file a petition for certiorari with this Court on direct review, § 2255’s one-year
limitation period starts to run when the time for seeking such review expires.”); see also
U.S. Sup. Ct. R. 13.
This is a strict standard with only a very narrow exception. As set out by the
Eighth Circuit Court of Appeals:
the Antiterrorism and Effective Death Penalty Act of 1996 imposed, among
other things, a one-year statute of limitations on motions by prisoners under
section 2255 seeking to modify, vacate, or correct their federal sentences.
See Johnson v. United States, 544 U.S. 295, 299, 125 S. Ct. 1571, 161
L.Ed.2d 542 (2005). The one-year statute of limitation may be equitably
tolled “only if [the movant] shows ‘(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way’
and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 130 S.
Ct. 2549, 2562, 177 L.Ed.2d 130 (2010) (quoting Pace v. DiGuglielmo,
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544 U.S. 408, 418, 125 S. Ct. 1807, 161 L.Ed.2d 669 (2005)) (applicable
to section 2254 petitions); see also United States v. Martin, 408 F.3d 1089,
1093 (8th Cir. 2005) (applying same rule to section 2255 motions).
Muhammad v. United States, 735 F.3d 812, 815 (8th Cir. 2013).
Third, summary dismissal is appropriate when the movant has filed a previous §
2255 motion. Under the rules, movants are prohibited from filing a second 28 U.S.C. §
2255 motion unless they are granted leave from the Eighth Circuit Court of Appeals. See
28 U.S.C. § 2255(h), 28 U.S.C. § 2244 (b)(3)(A); see also United States v. Lee, 792
F.3d 1021, 1023 (8th Cir. 2015). Dismissal is appropriate if the movant has failed to
obtain leave to file a second successive habeas motion. Id.
II.

ANALYSIS

As explained above, Ward-Malone has filed multiple § 2255 motions. He was
denied permission to file a second or successive § 2255 motion on a previous occasion,
and he apparently tried to evade the requirement to seek permission on another. Even
though he claims to have newly discovered evidence regarding his case and innocence,
he must still seek permission from the Eighth Circuit to file a second or successive
motion. 28 U.S.C. § 2255(h). Because he has not done so, I must dismiss his § 2255
motion. All of his other motions are therefore moot.
III.

CERTIFICATE OF APPEALABILITY

In a 28 U.S.C. § 2255 proceeding before a district judge, the final order is subject
to review, on appeal, by the court of appeals for the circuit in which the proceeding is
held. See 28 U.S.C. § 2253(a). Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals. See 28 U.S.C. §
2253(c)(1)(A).

A district court possesses the authority to issue certificates of

appealability under 28 U.S.C. § 2253(c) and Fed. R. App. P. 22(b). See Tiedeman v.
Benson, 122 F. 3d 518, 522 (8th Cir. 1997). Under 28 U.S.C. § 2253(c)(2), a certificate
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of appealability may issue only if a movant has made a substantial showing of the denial
of a constitutional right. See Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003); Garrett
v. United States, 211 F.3d 1075, 1076–77 (8th Cir. 2000); Carter v. Hopkins, 151 F.3d
872, 873–74 (8th Cir. 1998); Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997); Tiedman,
122 F.3d at 523.

To make such a showing, the issues must be debatable among

reasonable jurists, a court could resolve the issues differently, or the issues deserve
further proceedings. Cox, 133 F.3d at 569 (citing Flieger v. Delo, 16 F.3d 878, 882–83
(8th Cir. 1994)); see also Miller-El, 537 U.S. at 335–36 (reiterating standard).
Courts reject constitutional claims either on the merits or on procedural grounds.
“‘[W]here a district court has rejected the constitutional claims on the merits, the showing
required to satisfy [28 U.S.C.] § 2253(c) is straightforward: the [movant] must
demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.’” Miller-El, 537 U.S. at 338 (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000)). When a federal habeas petition is dismissed on
procedural grounds without reaching the underlying constitutional claim, “the [movant
must show], at least, that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.” See
Slack, 529 U.S. at 484.
Having thoroughly reviewed the record in this case, I find that Ward-Malone has
not provided any basis for finding that his second or successive § 2255 motion is
authorized. Accordingly, a certificate of appealability will not issue. If Ward-Malone
desires further review of his § 2255 motion, he may request issuance of the certificate of
appealability by a circuit judge of the Eighth Circuit Court of Appeals in accordance with
Tiedeman, 122 F.3d at 520–22.

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IV.

CONCLUSION

For the reasons set forth herein:
1.

Ward-Malone’s motion (Doc. 2) under 28 U.S.C. § 2255 is denied and this
case is dismissed.

2.

Ward-Malone’s other various motions (Doc. 1, 8, 10, 11) are denied as
moot.

3.

A certificate of appealability will not issue.

IT IS SO ORDERED.
DATED this 19th day of November, 2020.

__________________________
Leonard T. Strand, Chief Judge

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