Mayfield v. United States of America
Filing
5
Memorandum Opinion and Order...The court ORDERS that the motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 filed by CodyMayfield be, and is hereby, dismissed. Pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure, Rule ll(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts, and 28 U.S.C. § 2253(c) (2), for the reasons discussed herein, the court further ORDERS that a certificate of appealability be, and is hereby, denied, as movant has not made a substantial showing of the denial of a constitutional right. (Ordered by Judge John McBryde on 10/8/2014) (wxc)
IN THE UNITED STATES DISTRICT
NORTHERN DISTRICT OF TEX S
FORT WORTH DIVISION
CODY MAYFIELD,
§
§
§
§
§
§
§
§
§
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.
NO. 4:14-CV-777-A
(NO. 4:11-CR-035-A)
MEMORANDUM OPINION
AND
ORDER
Came on for consideration the motion to vacate, set aside,
or correct sentence pursuant to 28 U.S.C.
Cody Mayfield.
§
2255 filed by movant,
Having considered the motion, the court concludes
that it should be dismissed.
I.
Background
On May 5, 2011, movant pleaded guilty to one count of
possession of a controlled substance with intent to distribute,
in violation of 21 U.S.C.
§
841(a) (1) & (b) (1) (C).
On August 19,
2011, the court sentenced movant to a term of imprisonment of 188
months.
Movant did not appeal.
On April 4, 2012, movant filed his first motion pursuant to
28
u.s.c.
§
2255 in Civil Case No. 4:12-CV-211-A, alleging claims
1
of ineffective assistance of counsel.
The court set the motion
for hearing; however, on October 11, 2012, prior to the date of
the hearing, movant sent a letter to the undersigned's chambers
asking to withdraw the § 2255 motion because of the illness of
movant's father.
On October 12, 2012, movant's court-appointed
counsel filed a motion to withdraw the § 2255 motion, which was
also signed by movant.
On October 12, 2012, the court dismissed
movant's § 2255 motion without prejudice.
On May 13, 2013, movant filed another § 2255 motion in Civil
Case No. 4:13-CV-393-A, raising the same claims of ineffective
assistance of counsel as in the prior motion.
set the matter for hearing.'
Again, the court
On the day of the hearing, as the
court prepared to administer the oath to witnesses who were to
testify, movant's court-appointed counsel informed the court that
movant no longer wished to pursue his § 2255 motion, "even though
he knew that he would be prevented from filing another motion
under§ 2255."
June 25, 2013 Order at 1.
The court questioned
movant concerning his wish to withdraw the motion, and thereafter
dismissed the
§
2255 motion with prejudice.
Movant has now filed yet another motion pursuant to § 2255.
In the instant motion, movant contends that his prior state-court
drug convictions fail to support the enhancement of his sentence
'The government filed a motion to dismiss, which the court denied.
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as a career offender under
§
4B1.1 of the united States
Sentencing Guidelines.
II.
Analysis
A.
The Antiterrorism and Effective Death
Penalty Act of 1996 ( "AEDPA")
AEDPA serves a "gatekeeper" function by limiting the
circumstances under which a prisoner may file a second or
successive application for post-conviction relief.
§
2244(b).
See 28 U.S.C.
Generally, to proceed with a successive motion, the
movant must show that it is based on:
(1) newly discovered evidence that, if proven and
viewed in light of the evidence as a whole, 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, made retroactive
to cases on collateral review by the Supreme Court,
that was previously unavailable.
28 U.S.C.
§
motion under
2255(h).
§
2255.
The instant motion makes movant's third
Because movant withdrew the motions in
Case Nos. 4:12-CV-211-A and 4:13-CV-393-A, the court must
consider whether such motions count against movant for purposes
of AEDPA's limitation on successive motions, prior to any
determination of whether movant meets the requirements of
2255 (h) .
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§
B.
Movant's First Two Motions are
§
2255 Motions
Since movant withdrew his first two motions filed in Case
Nos. 4:12-CV-211-A and 4:13-CV-393-A, the threshold issue for the
court to resolve is whether either, or both, of such motions
should be considered a true § 2255 motion, with the consequence
of requiring the court to then consider whether the instant
motion is second or successive.
Courts generally consider the circumstances surrounding a
prisoner's decision to dismiss or withdraw a § 2255 motion in
determining whether that motion may subject the movant to AEDPA's
successive requirements, with a
division between cases in which the [prisoner]
withdraws his petition before he has any reason to
think it is going to be denied (maybe he realizes that
because of lack of legal assistance he cannot
articulate his legal claim} and cases in which he
withdraws it when it becomes clear to him that it is
indeed about to be denied.
Potts v. United States, 210 F.3d 770, 770 (7th Cir. 2000}.
For example, in Potts, the court counted a withdrawn motion
as a first motion pursuant to § 2255 where the movant was
represented by counsel and only filed a motion to dismiss after
receiving the government's response in opposition.
71.
Id. at 770-
Likewise, a withdrawn § 2255 motion was considered "an
admission of defeat," and counted as a first§ 2255 motion under
AEDPA, where the prisoner was represented by counsel in filing
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his motion, the court had already set the motion for an
evidentiary hearing, and the withdrawal came when counsel
realized that the prisoner would be unable to sustain his burden
of proof during the evidentiary hearing.
F.3d 696, 697-98 (7th Cir. 1997).
withdrawn
§
Felder v. McVicar, 113
Other courts have considered a
2255 motion as a first such motion when it was
adjudicated on the merits or dismissed with prejudice.
v. United States, 391 F.3d 491, 495 (2nd Cir. 2004)
See Thai
(discussing
cases) .
In contrast, courts typically do not count a motion when it
is dismissed as procedurally defective, or where the prisoner
moves to withdraw the motion before being apprised of the
government's position.
See,
~,
F. 3d 940, 943 (7th Cir. 1999).
Garrett v. United States, 178
The key principle is that "a
prisoner is entitled to one unencumbered opportunity to receive a
decision on the merits."
Potts, 210 F.3d at 770.
Movant's circumstances are analogous to Potts and Felder.
Here, after consideration of movant's first
§
2255 motion, the
court appointed counsel to represent movant and set the matter
for hearing.
Prior to the hearing, but after receipt of the
government's response, movant moved to withdraw his claim.
In
addition to the letter filed by movant, movant's counsel also
filed a motion to withdraw in which he indicated that movant
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"wishes to abandon his Motion on the basis that he does not
believe he can prevail on the Motion."
Mot. to Withdraw Mot.
Under 28 U.S.C. § 2255 at 2, United States of America v. Cody
Mayfield, No. 4:12-CV-211-A (N.D. Tex. Oct. 12, 2012).
As
described in Potts and Felder, movant and his counsel had an
opportunity to review the government's response, and counsel
indicated that movant believed he could not prevail on the
merits.
Accordingly, the court concludes that the motion filed
in Case No. 4:12-CV-211-A was movant's first habeas motion as
contemplated by AEDPA.
The court further concludes that movant's motion in Case No.
4:13-CV-393-A should likewise "count" as a§ 2255 motion for
purposes of AEDPA.
Again, in Case No. 4:13-CV-393-A, the court
appointed counsel to represent movant, and set the matter for an
evidentiary hearing.
The case proceeded to the point where the
court was preparing to administer the oath to the witnesses who
would testify at the hearing, when counsel informed the court
that movant wished to withdraw the motion "even though he knew
that he would be prevented from filing another motion under
2255."
§
June 25, 2013 Order at 1, United States of America v.
Cody Mayfield, No. 4:13-CV-393-A (N.D. Tex. June 25, 2013).
The
court questioned movant and was satisfied that "movant [did] wish
to have his motion dismissed and that he has full knowledge and
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appreciation of the consequences of such a dismissal."
Id.
The
court then dismissed the motion with prejudice.
Under these circumstances, the court concludes that the
motion in Case No. 4:13-CV-393-A was a§ 2255 motion under AEDPA.
Thus, movant has had at least "one unencumbered opportunity to
receive a decision on the merits."
C.
Potts, 210 F.3d at 770.
The Instant Motion is Successive
Having determined that movant has filed at least one
previous motion pursuant to
2255, the court must now consider
§
if the instant motion is successive.
A motion pursuant to
§
2255
is not successive merely because it numerically follows a
previously-filed motion.
Rather, a "successive" motion under §
2255 is one that "1) raises a claim challenging the petitioner's
conviction or sentence that was or could have been raised in an
earlier petition; or 2) otherwise constitutes an abuse of the
writ."
United States v. Orozco-Ramirez, 211 F.3d 862, 867 (5th
Cir. 2000)
(citation omitted).
A
motion under
§
2255 that
attacks the same judgment attacked in a previous such motion is
generally considered successive and must meet the requirements of
§
2244(b).
Leal Garcia v. Quarterman, 573 F.3d 214, 222 (5th
Cir. 2009).
These factors support a determination that the instant
motion is successive under
§
2255.
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The instant motion attacks
the same judgment as both of movant's previous
§
2255 motions:
the 188-month sentence imposed in movant's criminal case.
And
movant could have, but failed, to challenge application of the
career offender enhancement in either of his previous
motions.
§
2255
Accordingly, the court concludes that the instant
action is a successive habeas motion as contemplated by 28 U.S.C.
§§
2255(h) and 2244(b).
In an attempt to avoid the "second or successive" barrier,
movant contends that the claim asserted in the instant motion
only became available to him following a recent district court
opinion from the Southern District of Texas, United States v.
Flores-Alcorta, 998 F. Supp. 2d 537 (S.D. Tex. 2014), that movant
argues invalidated the state-court judgments used to enhance his
sentence as a career offender.
Alcorta is unavailing.
Movant's reliance on Flores-
Flores-Alcorta addressed the particular
facts and circumstances pertaining to a single defendant and that
defendant's prior state-court convictions.
Flores-Alcorta is not
binding precedent on this court and does not represent a general
rule of law applicable to movant's state-court convictions.
A federal prisoner seeking to file a second or successive
motion under
§
2255 must first obtain an order from the
appropriate court of appeals authorizing the district court to
consider the motion.
28 U.S.C.
§§
8
2244 (b) (3) (A), 2255 (h).
Movant has neither alleged nor shown that he has obtained such an
order from the United States Court of Appeals for the Fifth
Circuit.
The court thus lacks jurisdiction to consider the
instant motion.
D.
The Motion is Untimely
Even if the court were to conclude that the instant motion
was not a successive
§
2255 motion, jurisdiction is still lacking
to consider the motion because it is untimely.
A one-year period
of limitations applies to motions under 28 U.S.C.
vacate, set aside, or correct sentence.
28 U.S.C.
2255 to
§
§
2255(f) . 2
Movant's judgment of conviction became final in August 2011; the
instant motion, filed more than three years later, is untimely.
Movant, however, contends that the instant motion is timely
because it was filed within one year of the February 2014
'Section 2255(f) provides that:
A !-year period of limitation shall apply to a motion under this section. The limitation
period shall run from the latest of-(I) 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.
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decision in Flores-Alcorta.
As discussed above, Flores-Alcorta
is inapplicable to movant's criminal case, and so does not render
the instant motion timely under§ 2255(f).
III.
Order
Therefore,
The court ORDERS that the motion to vacate, set aside, or
correct sentence pursuant to 28 U.S.C. § 2255 filed by Cody
Mayfield be, and is hereby, dismissed.
Pursuant to Rule 22(b) of the Federal Rules of Appellate
Procedure, Rule ll(a) of the Rules Governing Section 2255
Proceedings for the United States District Courts, and 28 U.S.C.
§ 2253(c) (2), for the reasons discussed herein, the court further
ORDERS that a certificate of appealability be, and is hereby,
denied, as movant has not made a substantial showing of the
denial of a constitutional right.
SIGNED October 8, 2014.
District Judg
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