Welch v. United States of America

Filing 4

MEMORANDUM OPINION AND ORDER by District Judge Judith C. Herrera dismissing this matter without prejudice, as described herein, and denying a Certificate of Appealability. (baw)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA,
Plaintiff,
v.

No. 10-cr-2734 JCH
No. 21-cv-0943 JCH-JHR

CASSLYN MAE WELCH,
Defendant.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Casslyn Mae Welch’s Motion to Amend and Request for
Sentence Reduction (Doc. 1770) (Motion to Amend) and Petition for Writ of Mandamus (Doc.
1771) (Mandamus Petition).1 Also before the Court is her Motion to Appoint Counsel (CV Doc.
3). Welch is a federal prisoner and is proceeding pro se. She argues the Government promised a
lower federal sentence, and her sentence is excessive. The Court construes the Motion to Amend
and Mandamus Petition as a successive 28 U.S.C. § 2255 proceeding filed without authorization
from the Tenth Circuit. The Court will dismiss the matter for lack of jurisdiction.
BACKGROUND
Welch was indicted on eleven counts following her participation in a carjacking conspiracy
that led to the killing of two people. (Docs. 24, 73, 83). Welch agreed to cooperate with the
investigation against her co-defendant, John Charles McCluskey, whom the Government admits
was the “mastermind, shooter, and the most culpable of all the defendants.” (Doc. 1754 at 6). In
2012, Welch pled guilty to nine crimes, including carjacking resulting in death; conspiracy to

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Unless otherwise noted, all docket references are to the criminal case, 10-cr-2734.

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interfere with commerce; and various firearm charges. (Doc. 259 at 2). At sentencing, Welch
argued the Government promised to support a 20-year prison term. (Docs. 1678, 1680). The
Court found no reliable evidence of such promise and sentenced Welch to 40 years imprisonment.
(Docs. 1726, 1727). Judgment was entered on the conviction and sentence on October 16, 2014.
(Doc. 1727).
Welch filed a direct appeal, and the Tenth Circuit affirmed the conviction and sentence.
See United States v. Welch, 638 Fed. App’x 674 (10th Cir. 2015). The Supreme Court denied
certiorari relief on May 31, 2016. (Doc. 1748). The following year, Welch timely filed her first
28 U.S.C. § 2255 motion. (Doc. 1749). She raised claims for ineffective assistance of counsel,
arguing her attorney led her to believe she would receive a 20-year sentence if she signed the plea
agreement. Id. at 15-16. The Court ordered an answer, referred the matter to the Honorable
Stephan Vidmar for proposed findings and a recommended disposition, and ultimately denied
Welch’s first § 2255 motion. (Docs. 1753, 1755, and 1757). The Court also denied as moot
Welch’s separate motion alleging a breach of the plea agreement. (Doc. 1678, 1761).
On June 7, 2021, Welch filed a Motion to Reduce Sentence. (Doc. 1764). That filing
alleges the real culprit (presumably John Charles McCluskey) died; the Government promised a
lower sentence; and the sentence is excessive. Id. at 1. Around the same time, the Federal Public
Defender’s Office indicated it was reviewing Welch’s criminal case to determine whether to pursue
compassionate release under 18 U.S.C. § 3582. (Doc. 1765). By a Memorandum Opinion and
Order entered June 11, 2021, the Court determined the Motion to Reduce Sentence raised
successive § 2255 claims. (Doc. 1768). The Court dismissed the Motion to Reduce Sentence for
lack of jurisdiction, as Welch did not obtain Tenth Circuit permission to file a successive claim.

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The ruling was entered without prejudice to seeking compassionate release under 18 U.S.C. § 3582.
Id. at 4.
Welch filed the Motion to Amend on June 21, 2021. (Doc. 1770). She ostensibly seeks
to amend the Motion to Reduce Sentence but raises the same grounds as that pleading. Thereafter,
she filed the Mandamus Petition and the Motion to Appoint Counsel. (Doc. 1771, CV Doc. 3).
The Court will consider whether the filings function as successive habeas claims.
DISCUSSION
“[O]nce judgment is entered, the filing of an amended [pleading] … is not permissible until
the judgment is set aside or vacated pursuant to Fed. R. Civ. P. 59(e) or 60(b).” United States v.
Nelson, 465 F.3d 1145, 1148 (2006). A post-judgment motion to amend filed by a pro se litigant
is ordinarily construed as “a combination of a motion to set aside judgment under Rule 60(b) . . .
and a motion to then amend under Rule 15.” Id. In habeas cases, a post-judgment motion is also
analyzed to determine whether it functions as a successive claim. A post-judgment motion must
be construed as a successive habeas petition “if it in substance or effect asserts or reasserts a federal
basis for relief from the petitioner’s underlying conviction.” Spitznas v. Boone, 464 F.3d 1213,
1215 (10th Cir. 2006). This includes post-judgment motions where the defendant does not cite 28
U.S.C. § 2255 but “wishes to allege his [or her] … sentence was unlawful.” United States v.
Nelson, 465 F.3d 1145, 1148-49 (10th Cir. 2006). Conversely, courts will treat a post-judgment
as a true Rule 59 or 60(b) motion if it “either (1) challenges only a procedural ruling of the habeas
court which precluded a merits determination of the habeas application, ... or (2) challenges a defect
in the integrity of the federal habeas proceeding, provided that such a challenge does not itself lead
inextricably to a merits-based attack on the disposition of a prior habeas petition.” Id. at 1215-16.

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In the case of a mixed pleading, the Rule 60(b) allegations must be considered separately from the
successive habeas claims. Id. at 1217.
The filings here challenge Welch’s underlying conviction and sentence. Welch’s Motion
to Amend consists of three sentences. Welch seeks leave to amend; argues the Government
offered her a lower sentence; and notes her co-conspirator is deceased. (Doc. 1770). The
Mandamus Petition contains the same allegations but adds her co-conspirator is responsible for the
crime, and her sentence is excessive based on the seriousness of the offense. (Doc. 1771).
Welch’s subsequent request for counsel also indicates she is “requesting relief in a writ of habeas
corpus.” (CV Doc. 3). The Motion to Amend and Mandamus Petition therefore constitute
successive habeas filings.2
By statute, District Courts have jurisdiction over a defendant’s first § 2255 motion. See 28
U.S.C. § 2255(h); In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008). After that, the defendant
must obtain authorization from the Tenth Circuit before filing a second or successive § 2255 motion
in the District Court. Id. The failure to obtain such authorization is a jurisdictional defect barring
relief. See Cline, 531 F.3d at 1251 (“A district court does not have jurisdiction to address the

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There is one potential exception that would require the Mandamus Petition to be construed as a mixed pleading,
raising successive habeas claims alongside Rule 60(b) arguments. The Mandamus Petition alleges the Government
reneged on its promise regarding Welch’s sentence; that such “facts are stated in the final order of the [first §] 2255”
ruling; and that “[t]his denied [Welch] due process….” (Doc. 1771 at 1-2). It appears Welch means the Government
violated due process principles during the plea proceedings. To the extent she means the fact findings in the first §
2255 ruling violate her due process rights, such argument must be separately construed as a Rule 60(b) claim. The
first § 2255 ruling was entered in 2017, and the Mandamus Petition was filed in 2021. Rule 60(b) claims filed more
than one year after the challenged judgment are generally only meritorious where the judgment is void or has been
discharged. See Rule 60(b)(4)-(5). Rule 60(b)(6) also contains a catchall clause for any other reason that justifies
relief, which may be raised at any time. However, Rule 60(b)(6) relief is “extraordinary,” “difficult to attain,” and
only “appropriate ... when it offends justice to deny such relief.” Zurich North America v. Matrix Serv., Inc., 426 F.3d
1281, 1289, 1293 (10th Cir. 2005). The first § 2255 judgment is not void/satisfied, and it does not offend justice to
deny relief. Thus, to the extent Welch intends to challenge the first § 2255 judgment, such challenge is construed
under Rule 60(b) and denied.

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merits of a second or successive § 2255 … claim until [the Tenth Circuit] has granted the required
authorization.”).
Where, as here, the defendant files a second § 2255 motion without authorization, the
District Court has two options. The Court may transfer the matter to the Tenth Circuit “if it
determines it is in the interest of justice to do so …, or it may dismiss the motion … for lack of
jurisdiction.” Cline, 531 F.3d at 1252. Factors to consider in evaluating a transfer include:
[W]hether the claims would be time barred if filed anew in the proper forum, whether the
claims alleged are likely to have merit, and whether the claims were filed in good faith or
if, on the other hand, it was clear at the time of filing that the court lacked the requisite
jurisdiction.
Id. at 1251. To be meritorious, a second or successive motion must be based on newly discovered
evidence or “a new rule of constitutional law, made retroactive to cases on collateral review by the
Supreme Court.” 28 U.S.C. § 2255(h).
Welch does not proffer any new evidence or law. The Motion merely rehashes her
arguments about excessive sentencing and points to the death of her co-conspirator. Welch’s
claims would also be time-barred if filed anew in the proper forum. Section 2255 claims must
generally be filed within one year after the Judgment becomes final. See 28 U.S.C. § 2255(f)(1).
Welch’s Judgment became final in 2016, after United States Supreme Court denied certiorari
review, and the limitation period expired in 2017. The jurisdictional defect was also evident when
Welch filed her post-judgment motions, as the Court already dismissed a prior pleading as
second/successive.
For these reasons, a transfer is not in the interest of justice. The Court will dismiss the
Motion to Amend and Mandamus Petition for lack of jurisdiction; deny any Rule 60(b) arguments,
to the extent they are raised; and deny the Motion to Appoint Counsel (CV Doc. 3) as moot. The
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Court will also deny a certificate of appealability under Habeas Corpus Rule 11, as this ruling is
not reasonably debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (certificate of
appealability can only issue in a habeas proceeding where petitioner “demonstrates that reasonable
jurists would find the district court’s assessment … debatable or wrong”). This ruling has no
impact on Welch’s ability to file a compassionate release motion under 18 U.S.C. § 3582.
IT IS ORDERED that Casslyn Rae Welch’s Motion to Amend and Request for Sentence
Reduction (CV Doc. 1; CR Doc. 1770) and Petition for Writ of Mandamus (CV Doc. 2; CR Doc.
1771) are DISMISSED without prejudice for lack of jurisdiction; but to the extent those filings
contain Rule 60(b) claims, such claims are DENIED.
IT IS FURTHER ORDERED that Welch’s Motion to Appoint Counsel (CV Doc. 3) is
DENIED as moot; a certificate of appealability is DENIED; and a separate judgment will be
entered closing the civil habeas case.
_______________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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