United States District Court, D. Colorado
ORDER DENYING DEFENDANT'S MOTION FOR
William J. Martínez United States District Judge
matter is before the Court on pro se Defendant
Michael Darryl Harden's “Motion Seeking
Reconsideration of Post-Conviction Judgment”
(“the Motion”) in which Mr. Harden asks this
Court to reconsider the denial of his previously-filed Motion
to Vacate (ECF No. 63) under 28 U.S.C. § 2255. (ECF No.
69.) As directed by the Court, the Government filed a
response to the Motion (ECF No. 77) and Mr. Harden used the
opportunity provided by the Court to submit a reply (ECF No.
Harden was charged with two counts of bank robbery under 18
U.S.C. § 2113(a) (“Counts One and Two”) and
with use of a firearm in furtherance of a crime of violence
under 18 U.S.C. § 924(c)(1)(A)(ii) (“Count
Three”). (ECF No. 14.) Mr. Harden entered a guilty plea
to Count Three of the Indictment, and the Government
dismissed Counts One and Two. (ECF Nos. 42; 50; 55.) On May
30, 2017, U.S. District Court Senior Judge Wiley Y. Daniel
sentenced Mr. Harden to a term of imprisonment of 84 months.
(ECF Nos. 56; 57.) Mr. Harden did not appeal his conviction
by guilty plea or the sentence imposed on him.
Harden filed a § 2255 Motion to Vacate on the grounds
that he was sentenced under 28 U.S.C. § 924(c)(3)(B),
the “residual risk of force” clause, which the
Tenth Circuit found to be unconstitutional in 2018. (ECF No.
63.) See United States v. Salas, 889 F.3d 681 (10th
Daniel denied the § 2255 Motion to Vacate on the grounds
that Mr. Harden waived his right to appeal or collaterally
challenge his conviction and the sentence imposed; that Mr.
Harden did not argue ineffective assistance of counsel or
prosecutorial misconduct; and that Mr. Harden was not
sentenced under the portion of § 924(c) that the Tenth
Circuit had found to be unconstitutional. (ECF No. 68.)
13, 2019, Mr. Harden filed the instant Motion arguing that
the Court misapprehended the controlling law and failed to
address certain claims presented in his § 2255 Motion to
Vacate, focusing on Judge Daniel's conclusion that Mr.
Harden was not sentenced under the unconstitutional portion
of § 924(c). (ECF No. 69 at 3.) Two days later, this
matter was drawn to the undersigned upon Judge Daniel's
passing. (ECF No. 74.)
[a] motion to reconsider may be granted when the court has
misapprehended the facts, a party's position, or the law.
Specific grounds include: (1) an intervening change in the
controlling law, (2) new evidence previously unavailable, and
(3) the need to correct clear error or prevent manifest
injustice. A motion to reconsider should not be used to
revisit issues already addressed or advance arguments that
could have been raised earlier.
United States v. Christy, 739 F.3d 534, 539 (10th
Cir. 2014) (internal quotation marks and citations omitted).
Court must construe the Motion liberally because Mr. Harden
is not represented by an attorney. See Haines v.
Kerner, 404 U.S. 519, 520-21 (1972) (per curiam);
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). However, the Court cannot be an advocate for a pro
se litigant. See Hall, 935 F.2d at 1110.
review of the Motion and the entire file, the Court concludes
that Mr. Harden fails to demonstrate that any of the grounds
justifying reconsideration exist in his case. As discussed
below, the prior Order denying the § 2255 Motion to
Vacate did not misapprehend Mr. Harden's position that he
was sentenced under the § 924(c) clause later found
unconstitutionally vague. The Court rejects the Mr.
Harden's contention that he was sentenced under that
provision, and does not disturb its prior ruling that Mr.
Harden was sentenced under § 924(c)(3)(A). As a result,
Mr. Harden's appellate waiver fully applies and controls.
Harden's plea agreement contains waivers of his right to
appeal and collaterally attack his conviction and sentence.
(ECF No. 42 at 2-3.) Among other things, his collateral
challenge waiver does not, however, prevent him from seeking
relief otherwise available if he “should receive the
benefit of an explicitly retroactive changing in the
sentencing guidelines or sentencing statute.”
(Id. at 3.) Mr. Harden argues that he was sentenced
under the residual risk of force clause of § 924(c). The
Tenth Circuit in Salas declared the residual risk of
force clause of §924(c) unconstitutional after Mr.
Harden was sentenced, but before he filed his § 2255
Motion to Vacate. See Salas, 889 F.3d 681. ...