United States District Court, D. Colorado
December 5, 2014
UNITED STATES OF AMERICA, Plaintiff,
JOHNNY SCOTT WARREN, Defendant Criminal Action No. 07-cr-00354-CMA
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 needs exception" to the Fourth Amendment's warrant and probable cause requirement. See Mabry, 728 F.3d at 1166, n.3. In any event, the Court first must determine whether the instant § 2255 motion is a second or successive § 2255 motion.
Pursuant to § 2255(h) and 28 U.S.C. § 2244(b)(3), Mr. Warren must obtain an order from the Tenth Circuit authorizing this Court to consider a second or successive § 2255 motion. See In re Cline, 531 F.3d 1249, 1250 (10th Cir. 2008) (per curiam). In the absence of such authorization, the district court lacks jurisdiction to consider the merits of the claims asserted in a second or successive § 2255 motion. See id. at 1251. Mr. Warren specifically argues that the instant § 2255 motion is not a second or successive § 2255 motion because the claim was not ripe until Kern and Mabry were decided, which was after his first § 2255 motion already had been adjudicated.
The phrase " second or successive" in § 2255(h) " does not simply refer to every § 2255 motion filed second in time to a previous § 2255 motion." In re Weathersby, 717 F.3d 1108, 1110 (10th Cir. 2013). Thus, a claim that was not ripe at the time the proceedings regarding a first § 2255 motion were ongoing is not second or successive within the meaning of § 2255(h). See id. at 1111 (concluding § 2255 claim to reopen federal sentence based on vacatur of prior state convictions when prior state convictions were not vacated until after first § 2255 proceedings concluded would not be second or successive); see also Panetti v. Quarterman, 551 U.S. 930, 947, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007) (finding that a claim that was not ripe when a state prisoner filed his first federal habeas petition pursuant to 28 U.S.C. § 2254 would not be considered second or successive if the petitioner asserted the claim in a subsequent § 2254 petition once it became ripe).
Even assuming the decisions in Kern and Mabry somehow support whatever Fourth Amendment claim Mr. Warren is asserting in the instant § 2255 motion, he fails to demonstrate that the Fourth Amendment claim was not ripe when he filed his first § 2255 motion. In other words, nothing in either Kern or Mabry provides the basis for Mr. Warren to assert a Fourth Amendment claim that did not exist prior to those decisions. Therefore, the instant § 2255 motion is a second or successive § 2255 motion.
Mr. Warren does not allege that he has obtained the necessary authorization from the Tenth Circuit to file a second or successive § 2255 motion. Therefore, the Court must either dismiss the § 2255 motion for lack of jurisdiction or, if it is in the interest of justice, transfer the matter to the Tenth Circuit pursuant to 28 U.S.C. § 1631. See id. at 1252. The factors to be
considered in deciding whether a transfer is in the interest of justice include whether the claims would be time barred if filed anew in the proper forum, whether the claims alleged 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 filing that the court lacked the requisite jurisdiction.
Id. at 1251. When " there is no risk that a meritorious successive claim will be lost absent a § 1631 transfer, a district court does not abuse its discretion if it concludes it is not in the interest of justice to transfer the matter." Id. at 1252. In order to present a meritorious successive claim, a federal prisoner must demonstrate the claim is based on either " 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, " 28 U.S.C. § 2255(h)(1), or " 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. § 2255(h)(2).
Mr. Warren fails to demonstrate that his Fourth Amendment claim in the instant § 2255 motion is based on either newly discovered evidence as required pursuant to § 2255(h)(1) or a new and retroactive rule of constitutional law as required pursuant to § 2255(h)(2). Therefore, the Court finds that a transfer is not in the interest of justice. See In re Cline, 531 F.3d at 1252. Instead, the § 2255 motion will be dismissed for lack of jurisdiction.
Under Rule 11(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts, a " district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Under 28 U.S.C. § 2253(c)(2), the Court may issue a certificate of appealability " only if the applicant has made a substantial showing of the denial of a constitutional right." Such a showing is made only when " a prisoner demonstrates 'that jurists of reason would find it debatable' that a constitutional violation occurred, and that the district court erred in its resolution." U.S. v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). The Court will not issue a certificate of appealability because Mr. Warren has not made a substantial showing of the denial of a constitutional right.
The Court also certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith and therefore in forma pauperis status will be denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). If Mr. Warren files a notice of appeal he also must pay the full $505 appellate filing fee or file a motion to proceed in forma pauperis in the United States Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
For the foregoing reasons, it is ORDERED that the 28 U.S.C. § 2255 motion (Doc. # 173) is DISMISSED for lack of jurisdiction. It is
FURTHER ORDERED that no certificate of appealability will issue because Defendant has not made a substantial showing of the denial of a constitutional right. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is DENIED WITHOUT PREJUDICE to the filing of a motion seeking leave to proceed in forma pauperis on appeal in the United States Court of Appeals for the Tenth Circuit.