Hughes v. USA
MEMORANDUM DECISION AND ORDER denying and dismissing for lack of jurisdiction 3 Petitioner's Motion for Reconsideration. Signed by Judge Ted Stewart on 10/13/2016. (eat)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
MEMORANDUM DECISION AND
ORDER DENYING PETITIONER’S
MOTION FOR RECONSIDERATION
UNITED STATES OF AMERICA,
Case No. 2:16-CV-913 TS
District Judge Ted Stewart
This matter is before the Court on Petitioner’s Motion for Reconsideration. For the
reasons discussed below, the Court will deny Petitioner’s Motion to the extent that it is a true
motion for reconsideration and dismiss for lack of jurisdiction the remainder of Petitioner’s
Petitioner was charged in a Felony Information on January 6, 2015, with possession of
child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Petitioner pleaded guilty on
February 17, 2015. Petitioner was sentenced on June 2, 2015, and Judgment was entered on June
5, 2015. An Amended Judgment was entered on June 12, 2015.
Petitioner filed a motion under 28 U.S.C. § 2255 on August 22, 2016. Pursuant to Rule
4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts, the
Court reviewed the motion and found that Petitioner was not entitled to relief. The Court denied
Petitioner’s Motion on September 7, 2016.
The Tenth Circuit Court of Appeals has provided the “steps to be followed by district
courts in this circuit when they are presented with a Rule 60(b) motion in a habeas or § 2255
case.” 1 Rule 59(e) motions are subject to the same analysis. 2 The Court must first determine
whether the motion is a true Rule 59(e) motion or a second or successive petition. 3
If the district court concludes that the motion is a true Rule [59(e)] motion, it
should rule on it as it would any other Rule [59(e)] motion. If, however, the
district court concludes that the motion is actually a second or successive petition,
it should refer the matter to [the Tenth Circuit] for authorization . . . . 4
A Rule 59(e) “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.” 5
Conversely, it is a “true” [59(e)] motion if it either (1) challenged 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
Under this analysis, the Court finds that Petitioner’s Motion for Reconsideration has
elements of both a true motion and a second or successive petition. Petitioner’s Motion is a true
motion to the extent that it challenges the Court’s prior ruling on procedural issues. Petitioner
does so by pointing out that the Court denied his motion rather than dismissing it. Thus,
Spitznas v. Boone, 464 F.3d 1213, 1216 (10th Cir. 2006).
United States v. Pedraza, 466 F.3d 932, 933 (10th Cir. 2006).
Spitznas, 464 F.3d at 1216.
Id. at 1217.
Id. at 1215.
Id. at 1215–16 (citation omitted).
Petitioner argues the Court should have served his § 2255 motion on the government to file a
response and hold a hearing.
Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District
Courts provides the procedure for the Court to follow in examining a § 2255 motion.
If it plainly appears from the motion, any attached exhibits, and the record of prior
proceedings that the moving party is not entitled to relief, the judge must dismiss
the motion and direct the clerk to notify the moving party. If the motion is not
dismissed, the judge must order the United States attorney to file an answer,
motion, or other response within a fixed time, or to take other action the judge
Petitioner argues that since the Court denied his § 2255 motion, rather than dismiss it, the
Court was required to have the government answer and hold a hearing on the motion. The Court
disagrees. While it is true that the Court denied the § 2255 motion instead of dismissing it, this
slight divergence from the language used in the Rules Governing Section 2255 Proceedings is
irrelevant. The Court clearly determined that Petitioner was not entitled to relief and directed the
Clerk to close the case. This is sufficient under Rule 4(b). To clarify any potential
misunderstanding, the Court makes clear that Petitioner’s § 2255 motion was and is dismissed.
Petitioner also challenges the Court’s ruling on the merits and reasserts his underlying
claims. The Court construes this portion of Petitioner’s Motion as a second or successive § 2255
motion since it reasserts a federal basis for relief from the underlying conviction. “Before a
federal prisoner may file a second or successive motion under § 2255, the prisoner must first
obtain an order from the appropriate court of appeals authorizing the district court to consider the
motion.” 7 “A district court does not have jurisdiction to address the merits of a second or
successive § 2255 . . . claim until [the appropriate court of appeals] has granted the required
In re Cline, 531 F.3d 1249, 1250 (10th Cir. 2008).
authorization.” 8 However, before transferring a second or successive motion under § 2255 to the
appropriate court of appeals for authorization, the Court must consider whether it is in the
interest of justice to do so. 9
The Tenth Circuit has delineated factors a court should consider in determining whether
it is in the interest of justice to transfer a second or successive § 2255 motion. These factors
whether the claims would be time barred if filed anew in the proper forum,
whether the claims 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 the filing the court
lacked the requisite jurisdiction. 10
Considering these factors, the Court finds that it is not in the interest of justice to transfer
Petitioner’s Motion. As explained previously, Petitioner’s claims are time barred and lack merit.
It is therefore
ORDERED that Petitioner’s Motion for Reconsideration (Docket No. 3) is is DENIED
and DISMISSED FOR LACK OF JURISDICTION.
DATED this 13th day of October, 2016.
BY THE COURT:
United States District Judge
Id. at 1251.
See 28 U.S.C. § 1631.
In re Cline, 531 F.3d at 1251.
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