Teague v. United States of America

Filing 22

MEMORANDUM OPINION AND ORDER by Sr. District Judge Robert C. Brack dismissing for lack of jurisdiction 18 MOTION for Relief From Judgment or Order and denying as moot 20 MOTION to Amend Motion for Relief From Judgment by Anthony David Teague. A Certificate of Appealability is denied and judgment will be entered. (jn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA,
Plaintiff/Respondent,
vs.

No. CV 07-0326 RB/LCS
No. CR 03-1133 RB

ANTHONY DAVID TEAGUE,
Defendant/Movant.

MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court, sua sponte under Fed. R. Civ. P. 60(b) and 28
U.S.C. § 2255, upon Movant David Anthony Teague’s Motion for Relief from a Judgment or
Order (CV 07-0326 Doc. 18; CR 03-1133 Doc. 144), and Motion to Amend Motion for Relief
from Judgment (CV 07-00326 Doc. 20; CR 03-01133 Doc. 146). Mr. Teague’s Motion for Relief
from a Judgment is a second or successive motion under 28 U.S.C. § 2255 filed without
authorization from the United States Court of Appeals for the Tenth Circuit, and the Court will
dismiss the Petition for lack of jurisdiction.
Mr. Teague was sentenced to 21 months imprisonment on March 26, 2004 for Threat to
Injure a Person Through Interstate Commerce in violation of 18 U.S.C. § 875(c). (CR 03-1133
Doc. 61.) Mr. Teague filed a direct appeal of his conviction and sentence on April 2, 2004. (CR
03-01133 Doc. 63.) The Tenth Circuit affirmed his conviction and sentence on May 15, 2006. (CR
03-01133 Doc. 72.)
Teague filed his first motion to vacate, set aside, or correct sentence under 28 U.S.C. §
2255 attacking the conviction and sentence in his criminal case on March 30, 2007. (CR 03-01133
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Doc. 74.) This case was opened as a companion civil case, No. CV 07-00326 RB/LCS (CV 0700326, Doc. 1). The Magistrate Judge entered Proposed Findings and Recommended Disposition
(PFRD), concluding that Teague was not entitled to relief on his § 2255 claims, including his claim
of ineffective assistance of counsel. (CV 07-00326 Doc. 14.) The District Judge adopted the
Magistrate Judge’s PFRD, dismissed the Motion with prejudice, and entered Judgment against him
on August 16, 2007. (CV 07-00326 Doc. 16, 17; CR 03-01133 Doc. 81.)
After he finished his sentence, but while incarcerated on Texas state criminal charges,
Teague then filed a Petition for Writ of Error Coram Nobis on July 25, 2016. (CR 03-01133 Doc.
82.) Teague sought to have his conviction in CR 03-01133 set aside because it was allegedly being
used to improperly enhance his Texas state sentence. (CR 03-01133 Doc. 82.) The Magistrate
Judge issued a PFRD on August 25, 2017, recommending that Teague’s Petition for Writ of Error
Coram Nobis be denied with prejudice. (CR 03-01133 Doc. 130.) The District Judge adopted the
Magistrate’s Judge’s PFRD and denied the Petition with prejudice on October 27, 2017. (CR 0301133 Doc. 134.)
Teague filed a second Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody on December 26, 2017. (CR 03-01133 Doc. 138.) In his
Motion, Teague again attacked his now-completed sentence in CR 03-01133, contending that it is
being used to improperly enhance his Texas state sentence. (Id. at 11.) The Court determined that
Teague’s Motion constituted a second or successive § 2255 and was filed in violation of 28 U.S.C.
§§ 2244 and 2255. (CR 03-01133 Doc. 141.)
On April 28, 2018, Teague then filed a Petition for a Writ of Habeas Corpus Under 28
U.S.C. § 2241 in the United States District Court for the Southern District of Texas, again attacking
use of the conviction and sentence in CR 03-01133 to enhance his Texas state court sentence. (CV

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18-00635 Doc. 1.) The Southern District determined that because Teague is incarcerated in
Beeville, Texas, the case should be transferred to the district of his incarceration. The Southern
District of Texas transferred the case to the Eastern District of Texas. (CV 18-00635 Doc. 5.) The
Eastern District of Texas entered an order concluding that because Teague seeks to be relieved of
the federal court sentence imposed in CR 03-01133, his Petition should be construed as a motion
to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255 and should be transferred to
the court that imposed the sentence. (CV 18-00635 Doc. 14.) The Eastern District of Texas then
transferred Teague’s current Petition to this Court as the sentencing court. (Id.)
Teague did not object to the transfer of the case to this District, nor did he challenge the
Eastern District of Texas’s characterization of his filing as a § 2255 motion to vacate, set aside, or
correct sentence. This Court determined that Teague would not be able to obtain any relief under
§ 2241 because he is not incarcerated in this District, declined to reconsider the characterization
of the Petition as a § 2255 motion, and dismissed the Petition as a second or successive § 2255
filing filed without Tenth Circuit authorization. 28 U.S.C. § 2255(h). (CR 03-01133 RB Doc. 17,
18.)
Teague filed his current Motion for Relief from a Judgment or Order pursuant to Federal
Rule of Civil Procedure 60(b) in this case on August 16, 2018. (CV 07-00326 Doc. 18 at 1; CR
03-01133 Doc. 144 at 1.) Teague once again claims that his conviction in CR 03-01133 is being
wrongfully used to enhance his Texas state criminal sentence. (CV 07-00326 Doc. 18 at 1; CR 0301133 Doc. 144 at 1.) Teague “asserts that his is not a successive § 2255 motion but is cognizable
as a due process constitutional violation regarding his current sentence.” (CV 07-00326 Doc. 18
at 1; CR 03-01133 Doc. 144 at 1.) Teague asks the Court to “grant relief by reversing the Court’s

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previous order denying § 2255 relief and vacate his unconstitutional prior judgment of conviction
on the criminal case. (CV 07-00326 Doc. 18 at 2; CR 03-01133 Doc. 144 at 2.)
Teague’s Motion for Relief does not specify any basis for setting aside the Court’s prior
order denying him § 2255 relief but, instead, claims that the underlying judgment of conviction in
his criminal case was the result of denial of:
his right to the effective assistance of counsel when his trial attorney failed to object
to erroneous jury instructions or failed to request proper jury instructions regarding
the mens rea element of the offense as well as a “reasonable person” element.
(CV 07-00326 Doc. 18 at 1; CR 03-01133 Doc. 144 at 1.)
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, 531–32 (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 545 U.S. at 538. 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 532. A Rule 60(b) motion that asserts or reasserts a federal basis for relief from the underlying
conviction or sentence should be treated as a second or successive habeas petition. Id. The Court
determines that Teague’s Motion for Relief should be considered a second or successive § 2255
motion because it challenges the merits of his underlying criminal sentencing, not a defect in the
original § 2255 proceeding. Spitznas, 464 F.3d at 1215.

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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).
Teague has filed his § 2255 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).
Applying Cline, the Court determines it is not in the interest of justice, declines to transfer,
and will dismiss this matter for lack of jurisdiction. Teague is no longer in federal custody and
consequently may no longer seek relief under § 2255. Instead, Teague may only attack his federal
conviction and sentence by a petition for writ of error coram nobis, which Teague has already
done. United States v. Denedo, 556 U.S. 904, 911 (2009); see also Klein v. United States, 880 F.2d
250, 253 (10th Cir. 1989); Igo v. United States, 303 F.2d 317, 318 (10th Cir. 1962). Because
Teague may no longer obtain relief under § 2255, it is unlikely that the Tenth Circuit would
authorize him to proceed on a second or successive § 2255 motion. It would not serve the interest

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of justice for this Court to transfer Teague’s § 2255 Motion to the Tenth Circuit, and the Court
will dismiss the Motion for lack of jurisdiction. See Cline, 531 F.3d at 1252.
Last, under 28 U.S.C. § 2253(c)(1) “[u]nless a circuit justice or a judge issues a certificate
of appealability, an appeal may not be taken to the court of appeals from . . . (B) the final order in
a proceeding under section 2255.” A certificate of appealability may issue under § 2253(c)(1) only
if the movant has made a substantial showing of the denial of a constitutional right. 28 U.S.C. §
2253(c)(2). Rule 11(a) of the Rules Governing Section 2255 Cases provides that the district court
must issue or deny a certificate of appealability when it enters a final order adverse to the § 2255
movant. The Court determines, sua sponte under Rule 11(a) of the Rules Governing Section 2255
Cases, that Teague has failed to make a substantial showing that he has been denied a constitutional
right and the Court will deny a certificate of appealability.
IT IS ORDERED:
(1) Mr. Teague’s Motion for Relief from a Judgment or Order (CV 07-00326 RB/LCS Doc.
18, CR 03-01133 RB Doc. 144), which the Court construes as a second or successive § 2255
motion, is DISMISSED for lack of jurisdiction;
(2) Mr. Teague’s Motion to Amend Motion for Relief from Judgment (CV 07-00326
RB/LCS Doc. 20, CR 03-01133 RB Doc. 146) is DENIED as moot in light of the dismissal of this
proceeding; and
(2) a certificate of appealability is DENIED and judgment will be entered.

________________________________
ROBERT C. BRACK
SENIOR U.S. DISTRICT JUDGE

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