Kennelley v. United States of America
MEMORANDUM OPINION AND ORDER by Chief Judge M. Christina Armijo to transfer to Court of Appeals 6 MOTION for Reconsideration re 4 Judgment, 3 Memorandum Opinion and Order Motion for Relief from Judgment on Motion Under 28 U.S.C. 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (vv)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
TIMOTHY JAMES KENNELLEY,
No. CV 16-00153 MCA/GBW
No. CR 6-00499 MCA
UNITED STATES OF AMERICA,
MEMORANDUM OPINION AND ORDER TO TRANSFER
AS A SECOND OR SUCCESSIVE § 2255 MOTION
THIS MATTER is before the Court on Movant Timothy James Kennelley’s Motion For
Relief From Judgment on Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence By a Person in Federal Custody filed June 25, 2016. (CV Doc. 6; CR Doc. 145)
(“Motion For Relief From Judgment”).
Movant Kennelley seeks to set aside this Court’s
Judgment denying his § 2255 Motion based on Johnson v. United States under Fed. R. Civ. P.
60(b). The Court concludes that the Motion For Relief From Final Judgment is in substance a
second or successive § 2255 motion and will transfer this matter to the United States Court of
Appeals for the Tenth Circuit.
Kennelley seeks to proceed under Fed. R. Civ. P. 60(b). As a threshold matter, the Court
must determine whether his Motion For Relief From Judgment is a “true” rule 60(b) motion or,
instead, a second or successive § 2255 motion. See Gonzalez v. Crosby, 545 U.S. 524 (2005);
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 125 S.Ct. at 2651. Conversely,
it is a “true” 60(b) motion if it either (1) challenges only a procedural ruling of the court which
precluded a merits determination of the § 2255 motion or (2) 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, id. at 2648. 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. id. at 2648. The Court determines that that
Kennelley’s Motion For Relief From Judgment should be considered a second or successive §
2255 motion because it challenges the merits of his underlying sentencing.
Kennelley was indicted and pled guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2). (CR Doc. 1, 100). The Court
adopted the presentence report (PSR) findings and, on September 16, 2008, sentenced Kennelley
to 180 months of imprisonment followed by a three-year term of supervised release. (CR Doc.
129 and 132). The PSR concluded that Kennelley had three violent felonies and is an armed
career criminal subject to a statutory minimum of fifteen years of confinement under 18 U.S.C. §
924(e) under the Armed Career Criminal Act (“ACCA”). (CR Doc. 104). The PSR identified the
three prior felony convictions for crimes of violence to include:
(1) Case No. C-48544 (January 5, 1982, Burglary, Orange County Superior Court,
(2) Case No. 88-17 (November 17, 1988, Burglary, Carbon County, Red Lodge,
(3) Case No. FECCR047051 (August 17, 1998, Felony Domestic Assault Causing Bodily
Injury, Iowa District Court, Woodbury County, Sioux City, Iowa). (CR Doc. 104).
The PSR also identified an additional felony Montana burglary conviction, case no. DC 87-07
(December 21, 1987, Burglary, Thirteenth Judicial Court, Carbon County, Red Lodge, Montana).
During the sentencing phase of his criminal case, Kennelley challenged Case No. 88-17
as a predicate offense under the ACCA on the grounds that it involved a commercial burglary
and was not the type of crime contemplated by the term “burglary” as used in the ACCA.
Kennelley did not challenge use of either of the other two convictions to enhance his sentence.
(CR Doc. 104). Kennelley ultimately conceded that Tenth Circuit precedent foreclosed his
argument regarding the commercial burglary conviction and the Court rejected Kennelley’s
objection to enhancement under the ACCA. (CR Doc. 125, 129).
In his March 3, 2016 § 2255 Motion, Kennelley sought to be relieved of his sentence
based on the Supreme Court’s decision in Johnson v. United States,135 S.Ct.2551 (2015). (CV
Doc. 1 and 2, CR Doc. 138 and 139). The Court determined that, although Kennelley’s sentence
was enhanced under the ACCA, it was not enhanced under the residual clause of the Act.
Instead, the three prior convictions used to enhance his sentence are either for enumerated
offenses of burglary under § 924(e)(2)(B)(ii) or for domestic violence within the §
924(e)(2)(B)(i) definition of violent felony (“has as an element the use, attempted use, or
threatened use of physical force against the person of another”). The Supreme Court expressly
ruled the enumerated offenses and the remainder of the definition of violent felony remain
unaffected by the Court’s ruling in Johnson. The Supreme Court, however, specifically stated:
“[t]oday’s decision does not call into question application of the Act
to the four enumerated offenses, or the remainder of the Act’s definition
of a violent felony.” 135 S.Ct. at 2563.
Therefore, the Court ruled that Johnson has no application to Kennelley’s sentence and
Kennelley was not entitled to relief under 28 U.S.C. § 2255 based on Johnson. (CV Doc. 3; CR
The Court also denied a certificate of appealability and Kennelly did not appeal from the
Court’s Memorandum Opinion and Order denying his § 2255 motion under Johnson. (CV Doc.
3, 4, 5; CR Doc. 140, 141, 142). Instead, Kennelly then filed his rule 60(b) Motion For Relief
From Judgment on June 25, 2016. (CV Doc. 4; CR Doc. 145).
In his Motion For Relief From Judgment, Kennelley now seeks to argue that the
California and Montana burglary convictions do not properly support an enhanced sentence
under the enumerated clause of the ACCA based on the U.S. Supreme Court’s rulings in
Descamps v. United States, 133 S.Ct. 2276, 2285 (2013) and Mathis v. United States, 136 S.Ct.
2243 (2016). (CV Doc. 6 at 9-14; CR Doc. 145 at 9-14). Kennelley’s arguments based on
Descamps and Mathis directly challenge the merits of his sentencing and, therefore, his Motion
For Relief From Judgment should be treated as a second or successive § 2255 motion. In re
Lindsey, 582 F.3d 1173, 1176 (10th Cir. 2009); Spitznas v. Boone, 464 F.3d at 1215.
Section 2255 provides that a second or successive motion must 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 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).
Kennelley has filed his motion without authorization from a court of appeals as required
by § 2244(b)(3)(A). This Court lacks jurisdiction to consider his motion absent the requisite
authorization. When a 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 under 28
U.S.C. § 1631. See In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008). The Court determines that
it is in the interests of justice and will order this matter transferred to the United States Court of
Appeals for the Tenth Circuit.
At this stage of the proceedings, Kennelley may proceed with a second or successive §
2255 motion only if he is relying on a right made retroactively applicable to cases on collateral
review by the Supreme Court. 28 U.S.C. § 2255(f)(3). In unpublished decisions, the Tenth
Circuit has indicated that neither Descamps nor Mathis announced a new right made
retroactively applicable to cases on collateral review. See United States v. Montes, 570 F. App'x
830, 831 (10th Cir. 2014) ( Descamps decision did not recognize a new right); United States v.
Taylor, No. 16-6223, 2016 WL 7093905, at *4 (10th Cir. Dec. 6, 2016) (Mathis did not
announce a new rule). The Court determines that it is in the interests of justice to allow the
Tenth Circuit to decide whether Kennelley may proceed on a second or successive § 2255
motion based on Descamps or Mathis.
IT IS ORDERED that Movant Timothy James Kennelley’s Motion For Relief From
Judgment on Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a
Person in Federal Custody. (CV Doc. 6; CR Doc. 145) is construed as a second or successive §
2255 motion and the Clerk is DIRECTED TO TRANSFER the Motion For Relief From
Judgment to the United States Court of Appeals for the Tenth Circuit.
UNITED STATES DISTRICT JUDGE
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