United States District Court, D. Colorado
Johnny Scott Warren, Petitioner (1:14-cv-03280-CMA), Pro se, FLORENCE, CO.
Johnny Scott Warren, Defendant (1:07-cr-00354-CMA), Pro se, FLORENCE, CO.
For Johnny Scott Warren, Defendant (1:07-cr-00354-CMA): Robert William Pepin, Office of the Federal Public Defender, Denver, CO.
For USA, Plaintiff (1:07-cr-00354-CMA): James R. Allison, James O. Hearty, John Milton Hutchins, U.S. Attorney's Office-Denver, Denver, CO.
ORDER DISMISSING 28 U.S.C. § 2255 MOTION
CHRISTINE M. ARGUELLO, United States District Judge.
The matter is before the Court on the motion to vacate pursuant to 28 U.S.C. § 2255 (Doc. # 173) filed pro se by Defendant Johnny Scott Warren. The Court must construe the motion liberally because Mr. Warren is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated below, the Court will dismiss the motion.
Mr. Warren was convicted of one count of felon in possession of a firearm and one count of possession with intent to distribute a controlled substance and he was sentenced to 240 months in prison. On direct appeal, the United States Court of Appeals for the Tenth Circuit rejected Mr. Warren's Fourth Amendment claim challenging the warrantless search of his residence by police officers accompanied by parole officers and affirmed the judgment of conviction. See United States v. Warren, 566 F.3d 1211 (10th Cir.), cert. denied, 558 U.S. 1018, 130 S.Ct. 569, 175 L.Ed.2d 393 (2009). The Tenth Circuit specifically " uph[e]ld the search as a special-needs parole search because the participating police officer acted under the direction of a parole officer." Warren, 566 F.3d at 1213.
In May 2010, Mr. Warren filed a 28 U.S.C. § 2255 motion (Doc. # 124) claiming that the Court lacked jurisdiction over his criminal case because there was no indictment or waiver of the indictment and that counsel was ineffective for failing to investigate and challenge the Court's lack of jurisdiction in the absence of an indictment or waiver of an indictment. The Court denied the § 2255 motion because Mr. Warren's claims lacked merit. ( See Doc. # 128.) Mr. Warren appealed. The Tenth Circuit subsequently denied Mr. Warren's application for a certificate of appealability and dismissed the appeal. See United States v. Warren, 393 F.App'x 567 (10th Cir. 2010).
Mr. Warren then filed a motion for permission to file a second or successive § 2255 motion in the Tenth Circuit, again seeking to challenge the search of his residence on Fourth Amendment grounds. On January 7, 2011, the Tenth Circuit denied the motion for authorization to file a second or successive § 2255 motion. ( See Doc. # 138.)
On June 20, 2011, Mr. Warren filed a motion pursuant to Fed.R.Civ.P. 60(d)(3) (Doc. # 139) and again challenged the search of his residence. The Court denied the motion because Mr. Warren did not state a claim of fraud on the Court as required under Rule 60(d)(3). ( See Doc. # 140.)
On January 10, 2012, Mr. Warren filed a motion for review of his sentence pursuant to 18 U.S.C. § 3742(a)(1) (Doc. # 143), again challenging the search of his residence. The Court denied the motion because the statutory authority on which Mr. Warren relied does not grant jurisdiction to a district court to review a final sentence. ( See Doc. # 145.) Mr. Warren appealed and that appeal also was dismissed. ( See Doc. # 158.)
Mr. Warren next filed a motion to modify his sentence pursuant to 18 U.S.C. § 3582(c)(2) (Doc. # 159) and a motion for relief from a void judgment pursuant to Fed.R.Civ.P. 60(b)(4) (Doc. # 163). The Court dismissed both motions for lack of subject matter jurisdiction and specifically determined that the Rule 60(b)(4) motion, in which Mr. Warren claimed the evidence used to convict him was gathered during a search that was unauthorized under Colorado law, was an unauthorized second or successive § 2255 motion. ( See Doc. # 165.)
On April 9, 2014, Mr. Warren filed another motion for relief from a void judgment pursuant to Fed.R.Civ.P. 60(b)(4) (Doc. #166). The Court determined this motion also was an unauthorized second or successive § 2255 motion and denied the motion. ( See Doc. # 169.)
On December 1, 2014, Mr. Warren filed the instant § 2255 motion again raising a Fourth Amendment claim. The specific claim Mr. Warren is asserting is not set forth clearly in the § 2255 motion and he fails to allege facts in support of the claim. Instead, Mr. Warren contends only that the claim is based on a state supreme court decision captioned " State v. Kern" and the Tenth Circuit's decision in United States v. Mabry, 728 F.3d 1163 (10th Cir. 2013). It appears that the state supreme court decision to which Mr. Warren is referring is State v. Kern, 831 N.W.2d 149 (Iowa 2013). It is not clear how either of these cases might support Mr. Warren's Fourth Amendment claim. In Kern, the Iowa Supreme Court held that a search of a parolee's home violated the Iowa Constitution. See Kern, 831 N.W.2d at 155. In Mabry, the Tenth Circuit upheld a search of a parolee's home under the totality of the circumstances and did " not consider the special ...