Bruner v. United States of America

Filing 5

MEMORANDUM OPINION AND ORDER dismissing 1 Motion to Vacate/Set Aside/Correct Sentence (2255) by District Judge James O. Browning. (vv)

Case 2:20-cv-00194-JB-KK Document 5 Filed 04/30/20 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JESSE BRUNER,
Petitioner,
vs.

No. CIV 20-0194 JB/KK
No. CR 11-1950 JB

UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court because Petitioner Jesse Bruner did not file an
amended 28 U.S.C. § 2255 habeas petition.

The Court directed Bruner to amend after he

submitted an unnecessary request for permission to raise a second/successive 28 U.S.C. § 2255
claim. See Memorandum Opinion and Order at 1, filed March 24, 2020 (Doc. 4)(“MOO”); .
Because he has not amended his § 2255 petition or responded to the MOO, the Court will dismiss
this habeas proceeding without prejudice.
FACTUAL AND PROCEDURAL BACKGROUND
Bruner is incarcerated at Federal Correctional Institution Beckley, in Raleigh County, West
Virginia. In 2013, he pled guilty to possession with intent to distribute 50 kilograms or more of a
mixture containing marijuana in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). See Plea
Agreement ¶ 3, at 2, filed October 6, 2011 (CR Doc. 24). The Honorable Judith Herrera, now
Senior United States District Judge for the United States District Court for the District of New
Mexico, sentenced him to 120-months imprisonment. See Judgment in a Criminal Case, filed May
13, 2013 (CR Doc. 55)(“Judgment”). Judge Herrera entered the Judgment on the conviction and
sentence on May 13, 2013. See Judgment at 1. Bruner did not appeal. The Judgment therefore

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became final no later than May 28, 2013, following the expiration of the fourteen-day appeal
period. See United States v. Burch, 202 F.3d 1274, 1277 (10th Cir. 2000)(stating that a conviction
is final when the time for filing a direct appeal expires); Fed. R. App. P. 4(b)(1)(A)(stating that a
defendant must file a notice of appeal in a criminal case within fourteen days after the entry of
judgment).
On April 25, 2016, Bruner filed a handwritten letter stating that he wished to challenge his
conviction under Johnson v. United States, 135 S. Ct. 2551 (2015). See Untitled Letter to the
Honorable Judith C. Herrera (dated April 21, 2016), filed April 25, 2016 (CR Doc. 63)(“Letter
Motion”). The Honorable Kirtan Khalsa, United States Magistrate Judge for the United States
District Court for the District of New Mexico, appointed counsel to investigate any claims under
Johnson v. United States. See Order at 1, filed May 16, 2016 (CR Doc. 65)(“Order”). Judge
Khalsa also notified Bruner that she intended to recharacterize the Letter Motion as a 28 U.S.C.
§ 2255 motion, unless he withdrew it within thirty days. See Order at 2. Bruner’s counsel timely
elected to withdraw the Letter Motion, noting that Bruner had “no legal basis for relief pursuant to
Johnson.” Motion to Withdraw Letter Seeking Relief Pursuant to Johnson and 2255, filed June
16, 2016 (CR Doc. 66). Judge Herrera approved the withdrawal and dismissed the civil habeas
action without prejudice. See Order of Voluntary Dismissal Without Prejudice at 1, filed June 22,
2016 (CR Doc. 67); Final Judgment at 1, filed June 22, 2016 (CR Doc. 68).
Bruner initiated this habeas proceeding by filing a Motion Under 28 U.S.C. § 2244 for
Order Authorizing District Court to Consider Second or Successive Application for Relief on 28
U.S.C. §§ 2254 or 2255 on May 18, 2018 (CR Doc. 71)(“Motion”). The Motion seeks permission,
ostensibly from the United States Court of Appeals for the Tenth Circuit, to file a second § 2255

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motion. In the section addressing Bruner’s “first” habeas proceeding, he lists the 2016 Letter
Motion. Motion at 1. At first, it appeared that Bruner directed the Motion to the Tenth Circuit
and filed a courtesy copy of the Motion in the District Court docket. Having searched the Tenth
Circuit’s docket, it does not appear that Bruner filed his request with the Tenth Circuit.
Accordingly, the Honorable Kenneth Gonzales, United States District Judge for the United States
District Court for the District of New Mexico, opened civil habeas proceeding, No. CIV 20-0194
JB, to address the Motion. The civil habeas proceeding relates back to the original filing date,
May 18, 2018. See Motion at 1.
On March 24, 2020, the Court screened the Motion and determined that it qualifies as
Bruner’s “first” § 2255 habeas proceeding. Bruner v. United States, No. CIV 20-0194 JB/KK,
2020 WL 1434271 (D.N.M. March 24, 2020)(Browning, J.). The Court therefore concluded that
Bruner does not need permission to file a second or successive habeas proceeding from the Tenth
Circuit and allowed him to file an amended § 2255 motion within thirty days of the MOO’s entry.
See 2020 WL 1434271, at *4. The Court also warned Bruner that any § 2255 claims appear to be
time-barred and noted that any amended § 2255 motion must address the time-bar. See 2020 WL
1434271, at *4. The MOO states that “the failure to timely file an amended § 2255 motion and
overcome the time-bar will result in dismissal of this action without further notice.” 2020 WL
1434271, at *3. The deadline to file an amended § 2255 motion was April 23, 2020. Bruner did
not comply with or otherwise respond to the MOO.
ANALYSIS
Rule 41(b) of the Federal Rules of Civil Procedure authorizes the involuntary dismissal of
an action “[i]f the plaintiff fails to prosecute or to comply with the [Federal Rules of Civil

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Procedure] or a court order.” Fed. R. Civ. P. 41(b). See AdvantEdge Bus. Grp. v. Thomas E.
Mestmaker & Assocs., Inc., 552 F.3d 1233, 1236 (10th Cir. 2009)(“A district court undoubtedly
has discretion to sanction a party for failing to prosecute or defend a case, or for failing to comply
with local or federal procedural rules.”)(internal citation omitted). As the Tenth Circuit has
explained, “the need to prosecute one’s claim (or face dismissal) is a fundamental precept of
modern litigation . . . .” Rogers v. Andrus Transp. Servs., 502 F.3d 1147, 1152 (10th Cir. 2007).
“Although the language of Rule 41(b) requires that the defendant file a motion to dismiss, the Rule
has long been interpreted to permit courts to dismiss actions sua sponte for a plaintiff’s failure to
prosecute or comply with the rules of civil procedure or court[s’] orders.” Olsen v. Mapes, 333
F.3d 1199, 1204 n.3 (10th Cir. 2003).
“Dismissals pursuant to Rule 41(b) may be made with or without prejudice.” Davis v.
Miller, 571 F.3d 1058, 1061 (10th Cir. 2009). If dismissal is made without prejudice, “a district
court may, without abusing its discretion, enter such an order without attention to any particular
procedures.” Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe Cty. Justice Ctr., 492 F.3d
1158, 1162 (10th Cir. 2016).

Because “[d]ismissing a case with prejudice, however, is a

significantly harsher remedy -- the death penalty of pleading punishments -- [the Tenth Circuit has]
held that, for a district court to exercise soundly its discretion in imposing such a result, it must first
consider certain criteria.” Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe Cty. Justice
Ctr., 494 F.3d at 1162. These criteria include the degree of actual prejudice to the defendant, the
amount of interference with the judicial process, the litigant’s culpability, whether the court warned
the party in advance that dismissal of the action would be a likely sanction for noncompliance, and
the efficacy of lesser sanctions. See Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe Cty.

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Justice Ctr., 494 F.3d at 1162.
Here, Bruner did not file an amended § 2255 motion, as the Court ordered in its MOO. In
light of this failure, the Court will dismiss this habeas case pursuant to rule 41(b) for failure to
prosecute. See Olsen v. Mapes, 333 F.3d 1199 at 1204. The Court declines to address timeliness
in this proceeding, and the dismissal will be without prejudice, after considering the factors in
Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe Cty. Justice Center. The Court advises
Bruner that any subsequent § 2255 proceedings will not relate back to the Motion Under 28 U.S.C.
§ 2244 for Order Authorizing District Court to Consider Second or Successive Application for
Relief on 28 U.S.C. §§ 2254 or 2255, filed May 18, 2018 (CR Doc. 71).
IT IS ORDERED that: (i) the § 2255 habeas proceeding, which the Motion Under
28 U.S.C. § 2244 for Order Authorizing District Court to Consider Second or Successive
Application for Relief on 28 U.S.C. §§ 2254 or 2255, filed May 18, 2018 (CR Doc. 71; CIV Doc.
1), generates is dismissed without prejudice; and (ii) the Court will enter a separate Final Judgment
disposing of the civil case.

________________________________
UNITED STATES DISTRICT JUDGE
Parties:
Jesse Bruner
Federal Correctional Institution Beckley
Beaver, West Virginia
Pro se petitioner

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