United States District Court, D. Colorado
ORDER DENYING MOTION TO RECONSIDER
ROBERT E. BLACKBURN, District Judge.
This matter is before me on the pro se Motion for Reconsideration of Decision [#174],  filed by defendant-movant, Maria Garcia, on October 14, 2014. The United States filed a response [#182], and Ms. Garcia filed a Reply [#183]. For the following reasons, I deny the motion.
I. FACTUAL AND PROCEDURAL BACKGROUND
In October 2012, undercover agents with Homeland Security learned that Ms. Garcia's sister, Belia Monsivaiz, and others would be traveling to Colorado to purchase automatic weapons. [#182-1 at 3-4]. Ms. Monsivaiz asked Ms. Garcia to accompany her on the trip to Colorado. [#139, at 3-4]. Ms. Monsivaiz told Ms. Garcia that their father would be in danger if Monsivaiz did not go on the trip. [ Id. at 4].
Ms. Garcia traveled with her sister and two other co-defendants to Pueblo, Colorado, where the events at issue occurred. [#182-1 at 4]. In Pueblo, the four defendants arrived at a Home Depot parking lot where they met unknowingly with undercover agents. [ Id. ]. The undercover agents instructed them to drive to a storage unit where the agents had the weapons in a truck parked inside the unit. [ Id. at 4-5].
One of the agents directed Ms. Garcia to exit the vehicle and help move the guns. [#139 at 3]. The agent had to repeat the instruction before Ms. Garcia complied. [ Id. ]. Ms. Garcia lifted one weapon and handed it to her sister, who then handed it to another co-defendant to put in their truck. [ Id. ].
Ms. Garcia was convicted, pursuant to her guilty plea, of one count of possession of a machine gun, in violation of 18 U.S.C. §§ 922(o) and 924(a)(2), and was sentenced to an 84-month prison term. [#158]. Judgment was entered on September 17, 2013. [ Id. ].
On August 25, 2014, Ms. Garcia filed, pro se, a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody [#168]. After reviewing the § 2255 motion, I entered an order on August 26, 2014 [#169] directing Ms. Garcia to file an amended § 2255 Motion within thirty (30) days, "in which she must allege specific facts to support her claims of ineffective assistance of counsel." [ Id. at 2]. Ms. Garcia filed, pro se, an amended § 2255 motion [#170] and a Memorandum in Support [#171] on September 19, 2014. On September 25, 2014, I denied the amended § 2255 motion without a hearing because Ms. Garcia failed to allege specific facts to support her ineffective-assistance-of-counsel (IAC) claims. [#172].
Ms. Garcia now asks me to reconsider the September 25, 2014, Order. She argues that she did not allege specific facts in the amended § 2255 motion because she is proceeding pro se and did not realize what the Court expected. [#174 at 1]. In the motion for reconsideration, Ms. Garcia states some additional facts to support her IAC claims. [ Id. at 1-2].
II. JURISDICTION - SECOND OR SUCCESSIVE § 2255 MOTION
The United States maintains that Ms. Garcia's motion for reconsideration is arguably a successive § 2255 motion because it simply reasserts, in more detail, the claims previously presented in her original and amended § 2255 motions. [#182 at 3]. See Spitznas v. Boone, 464 F.3d 1213, 1215 (10th Cir. 2006) (instructing that a Rule 60(b) motion should be treated as a second or successive habeas petition if it substantially "asserts or reasserts a federal basis for relief from the petitioner's underlying conviction"); United States v. Pedraza, 466 F.3d 932, 933 & n.1 (10th Cir. 2006) (applying Spitznas to determine whether a Rule 59(e) motion was a successive § 2255 motion).
"Conversely, a motion for reconsideration is a true' [Rule 59(e) or Rule 60(b)] motion if it either (1) challenges only a procedural ruling of the habeas court which precluded a merits determination of the habeas application, [ Gonzales v. Crosby, 545 U.S. 524, 125 S.Ct. 2641, at 2648 n. 4]; 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 petition, id. at 2648." Spitznas, 464 F.3d at 1216.
I denied the amended § 2255 motion because Ms. Garcia failed to allege specific facts to support her IAC claims, after being given an opportunity to cure the factual deficiencies in the original § 2255 motion. The denial of a § 2255 motion for failure to state a claim for relief is a merits-based ruling, rather than the determination of a procedural issue. See, e.g., In re Lindsey, 582 F.3d 1173, 1175 (10th Cir. 2009) (concluding that the appellant's Rule 60(b) motion "raised a successive § 2255 claim" because "[t]he decision not to hold an evidentiary hearing essentially [was] the equivalent of a dismissal for failure to state a claim or a summary judgment"-in effect, "the district court... concluded that the record d[id] not entitle the prisoner to relief."). Further, Ms. Garcia does not allege a procedural defect in the integrity of the § 2255 proceeding. Instead, she re-asserts the same claims that were rejected in the Order denying the amended § 2255 motion. See Pedraza, 466 F.3d at 933 (recognizing that Rule 59(e) motions constitute second or successive habeas petitions where they simply raise claims already rejected as part of earlier habeas proceedings.). Accordingly, I find that the motion for reconsideration must be deemed a second or successive § 2255 motion.
Under 28 U.S.C. § 2255(h) and 28 U.S.C. § 2244(b)(3), Ms. Garcia must obtain from the United States Court of Appeals for the Tenth Circuit an order authorizing the district court to consider a second or successive § 2255 motion. In the absence of such authorization, the court lacks jurisdiction to consider the merits of the claims asserted in ...