GERSHWIN A. DRAIN, District Judge.
Blake Joseph Sandlain, an incarcerated person proceeding pro se, plead guilty to two felonies and is currently serving his sentence in Leavenworth, Kansas. Pending before the Court is Sandlain's second or successive habeas petition, which was held in abeyance pending the Supreme Court's decision in Beckles v. United States, 137 S.Ct. 866 (2017). On March 6, 2017, the Supreme Court decided Beckles. Since then, Mr. Sandlain has filed six motions: a Motion to Supplement, which the Court construes as a motion to amend his second or successive habeas petition, and five motions involving Federal Rules of Civil Procedure 60(b)(3) and 60(b)(5). For the following reasons, the Court will deny Mr. Sandlain's second or successive habeas petition, deny Mr. Sandlain's Motion to Supplement, and deny Mr. Sandlain's claims under Federal Rule of Civil Procedure 60.
On April 28, 2014, a federal grand jury indicted Blake Joseph Sandlain ("Petitioner" or "Mr. Sandlain") for: (1) being a felon in possession of a firearm; (2) possession with the intent to distribute a controlled substance; (3) maintaining drug-involved premises; and (4) using a firearm in furtherance of a drug trafficking crime. Dkt. No. 7. On January 8, 2015, Mr. Sandlain entered into a plea agreement, which the Court accepted. Dkt. No. 44. The Court sentenced Mr. Sandlain to 180 months imprisonment and supervised release for three years. Dkt. No. 73. Mr. Sandlain did not appeal.
On August 7, 2015, Mr. Sandlain moved to vacate his sentence pursuant to 28 U.S.C. § 2255. See Dkt. No. 55. This Court dismissed Mr. Sandlain's Section 2255 motion with prejudice and did not issue a certificate of appealability. Dkt. No. 72. On appeal, the Sixth Circuit denied Mr. Sandlain's application for a certificate of appealability and denied his motion to appoint counsel. Dkt. No. 80. In its opinion, the Sixth Circuit indicated that "Sandlain's classification as a career offender during his sentencing proceedings might be affected by Johnson v. United States, 135 S.Ct. 2551 (2015)[.]" Id. On June 22, 2016, Mr. Sandlain filed an Application for Leave to File a Second of Successive habeas petition. Dkt. No. 87. Based on Johnson, the Sixth Circuit authorized Mr. Sandlain to file a second habeas motion because Mr. Sandlain "may be entitled to relief from his career offender designation[.]" Dkt. No. 84.
Mr. Sandlain's Application for Leave to File a Second or Successive § 2255 Motion contained only one ground on which he claimed that he was being held unlawfully: his classification as a career offender. Dkt. No. 87, p. 5 (Pg. ID 580). In support of his application, Mr. Sandlain acknowledged that his renewed § 2255 Motion relied on Johnson. Id. Mr. Sandlain argues that, in light of Johnson, his classification as a career offender was unconstitutional. Id. Therefore, Mr. Sandlain moves the Court to grant his renewed § 2255 motion and conduct resentencing.
The Supreme Court's opinion in Beckles, however, forbids Mr. Sandlain's desired result. Mr. Sandlain was sentenced in 2015. At that time, the Sentencing Guidelines which were in effect, provided that, "[a] defendant is a career offender if:
U.S.S.G. § 4B1.1(a), dated November 1, 2014 (emphasis added).
The Guidelines define "crime of violence" as:
U.S.S.G. § 4B1.2(a), dated November 1, 2014 (emphasis added). The clause beginning with "or otherwise" in the § 4B1.2(a) definition above is the residual clause. Mr. Sandlain was sentenced as a career offender based in part on the residual clause in the Sentencing Guidelines.
There is an identical residual clause in the Armed Career Criminal Act ("ACCA"). Johnson held that the residual clause in the ACCA was unconstitutionally vague in the way it fixed a higher range of sentences for certain defendants. See Johnson, 135 S. Ct. at 2555, 2563. As of result of Johnson, defendants sentenced under the now-void residual clause in the ACCA have been granted resentencing. However, despite the identical language, the Supreme Court in Beckles rejected adopting Johnson's reasoning to the Sentencing Guidelines. The Supreme Court distinguished the ACCA from the Guidelines:
Beckles v. United States, 137 S.Ct. 886, 892 (2017). Mr. Sandlain was sentenced pursuant to the Sentencing Guidelines, not pursuant to the ACCA. Therefore, because Johnson does not apply to the Sentencing Guidelines, Mr. Sandlain's reliance on Johnson (and implicitly Beckles) is misplaced. Accordingly, Mr. Sandlain's renewed § 2255 motion must be denied.
Mr. Sandlain filed a "Supplement Motion to Second and Successive Held in Abeyance in this Court Docket Entry # 22." Dkt. No. 102. The Court construes Mr. Sandlain's Motion to Supplement as a motion to amend his § 2255 petition. This Court received the motion on March 10, 2017, but Mr. Sandlain dated the motion March 4, 2017—three days before the Beckles decision was released. It seems that Mr. Sandlain assumed Beckles would relieve him of his career offender designation. In anticipation of Beckles being decided in his favor, Mr. Sandlain requests the Court to re-calculate his criminal history category. Specifically, Mr. Sandlain argues that his presentence investigation report erroneous calculates his criminal history points. Dkt. No. 102, p. 2 (Pg. ID 671).
Nevertheless, this motion must be denied. This motion is futile because it proceeds on an incorrect assumption. Mr. Sandlain's reliance on Beckles was both premature and misplaced. Beckles did not invalidate Mr. Sandlain's career offender designation, as Mr. Sandlain had hoped. Instead, Mr. Sandlain's career criminal designation remains valid. Pursuant to Mr. Sandlain's designation as a career offender, the Guidelines assessed him at Criminal History Category VI. See U.S.S.G. § 4B1.1(b) ("A career offender's criminal history category in every case under this subsection shall be Category VI."). Therefore, even if the Court allowed Mr. Sandlain to amend his petition, recalculation of his criminal history points would not change his Criminal History Category.
"On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
FED. R. CIV. P. 60(b) (emphasis added).
On November 9, 2015 Mr. Sandlain filed an application for a certificate of appealability ("COA") with the Sixth Circuit. Dkt. No. 76. On July 8, 2016, the Sixth Circuit issued a six-page order denying Mr. Sandlain's application. Dkt. No. 80. The Sixth Circuit's order is signed by Deborah H. Hunt, Clerk of the Sixth Circuit Court of Appeals. Id. Mr. Sandlain argues that Deborah Hunt committed "fraud by signing and denying the motion for certificate of appealability[.]" Dkt. No. 103, p. 3 (Pg. ID 684). According to Mr. Sandlain, Deborah Hunt's signature exceeds the scope of her authority which requires "his judgment to be set aside for fraud on the court[.]" Id., p. 5 (Pg. ID 686).
"This Court, as an inferior court, is plainly subject to the review of the Court of Appeals for the Sixth Circuit. See 28 U.S.C. § 1291. As such, by its very nature, this Court has no authority to reconsider the judgment of an appellate court. Restated, the very essence of the relationship between this Court and the Court of Appeals for the Sixth Circuit precludes this Court from altering any decision made by the Court of Appeals." Hargrave-Thomas v. Yukins, 450 F.Supp.2d 711, 720 (E.D. Mich. 2006) (Gadola, J.); see also White v. Carter, 27 F. App'x 312, 313-14 (6th Cir. 2001) (district court lacks authority to reinstate habeas petitioner's second or successive habeas petition after appellate court declines to grant leave to file such a petition). Mr. Sandlain's Rule 60(b)(3) motion must be denied because this Court does not have the authority to overturn a decision rendered by the Sixth Circuit.
Mr. Sandlain filed two motions seeking relief pursuant to Rule 60(b)(5). On April 7, 2017 Mr. Sandlain moved to withdraw those two motions. Dkt. No. 106. Three days later, Mr. Sandlain moved to strike his own withdrawal of his motions. Dkt. No. 107. The Court grants Mr. Sandlain's Motion to strike his own withdrawal of his motion and will analyze his Rule 60(B)(5) claims.
Mr. Sandlain argues that his judgment should be set aside because it is "prospectively no longer equitable." Dkt. No. 104, p. 1 (Pg. ID 702). Mr. Sandlain attacks his career criminal designation with Mathis v. United States, 136 S.Ct. 2243 (2016) (holding that a prior conviction does not qualify as a generic form of a predicate violent felony for purposes of the ACCA if an element of the crime of conviction is broader than an element of the generic offense) and argues, for the first time, that his prior drug trafficking offense cannot be used to enhance his status as a career offender. Without reaching the merits of Mathis, Mr. Sandlain's motions pursuant to Rule 60(b)(5) are dismissed.
Mr. Sandlain's motions under Rule 60(b)(5) are both improper and untimely. Rule 60(b) motions "may not be used as vehicles to circumvent the limitations that Congress has placed upon the presentation of claims in a second or successive application for habeas relief." Moreland v. Robinson, 813 F.3d 315, 322 (6th Cir. 2016). "When a 60(b) motion attacks the merits of a conviction or sentence, or if it attacks the federal court's previous resolution of a claim on the merits, it should be construed as a habeas petition." United States v. Carter, 500 F.3d 486, 489 (6th Cir. 2007).
Applying these rules to Mr. Sandlain's Rule 60(b)(5) motions, it is clear that Mr. Sandlain is attempting to attack the federal basis of his sentence. The general thrust of Mr. Sandlain's Rule 60(b)(5) motions is that his career offender enhancement should be set aside because at least one of his prior convictions should not count as a predicate offense. In other words, Mr. Sandlain's Rule 60(b)(5) motions seek the same relief as his second or successive habeas petition—relief from his status as a career offender, albeit through a different path. Nevertheless, the Sixth Circuit has held that "a prisoner seeking relief under Rule 60(b) brings a second or successive habeas application when he seeks to present new evidence in support of a claim already litigated." Franklin v. Jenkins, 839 F.3d 465, 473 (6th Cir. 2016) (internal quotations omitted). Therefore, Mr. Sandlain's claims under Rule 60(b)(5) are in effect a second or successive habeas petition.
Although the Sixth Circuit granted Mr. Sandlain leave to file a second or successive habeas petition, the claims Mr. Sandlain now brings in his Rule 60(b)(5) motion were not included that original petition. Because Mr. Sandlain's Rule 60(b)(5) claims, which the Court construes as a second or successive habeas petition, are beyond the scope of prior authorization from the Sixth Circuit, this Court lacks jurisdiction over the claims. See Franklin v. Jenkins, 839 F.3d 465, 473-74 (6th Cir. 2016) ("But as we have held, a prisoner seeking relief under Rule 60(b) brings a second or successive habeas application when he seeks to present new evidence in support of a claim already litigated. Because [the petitioner's] Rule 60(b) motion does just that, the district court lacked jurisdiction to consider the new iteration of his ineffective-assistance claim without prior authorization from this court.") (internal citations and quotations omitted). Therefore, Mr. Sandlain's Rule 60(b)(5) motions must be dismissed for lack of jurisdiction.
Even if this Court somehow had jurisdiction over Mr. Sandlain's Rule 60(b)(5) claims, they would nevertheless be barred as untimely.
A 1-year period of limitation applies to § 2255 motions. The limitation period begins to run from the latest of:
28 U.S.C. § 2255(f).
First, Mr. Sandlain's judgment became final on May 21, 2015, however Mr. Sandlain did not file his Rule 60(B)(5) motions until March 2017. Therefore, Mr. Sandlain's claim is not timely under § 2255(f)(1).
Second, there is no alleged impediment by the Government, therefore, § 2255(f)(2) does not apply.
Third, Mr. Sandlain could argue that his new claims are timely pursuant to § 2255(f)(3) because Mathis was decided in June of 2016 and recognized a new right made retroactively applicable on collateral review. However, that argument would be without merit. "[A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." Teague v. Lane, 489 U.S. 288, 301 (1989). "It is admittedly often difficult to determine when a case announces a new rule[.]" Id. However, in this case, the language in Mathis seems to contradict any argument that Mathis announces a new rule. The Mathis Court states:
Mathis v. United States, 136 S.Ct. 2243, 2257, 195 L. Ed. 2d 604 (2016) (emphasis added).
Justice Kagan, writing the majority opinion, explains that the rule articulated in Mathis is not new at all, but rather dictated by decades of prior precedent. Therefore, it seems that Mathis did not announce any new rule. Several courts have come to this same conclusion. See United States v. Snow, No. 13-CR-20766, 2017 WL 1434307, at *2 (E.D. Mich. Apr. 24, 2017) (Luddington, J.) ("Through this language, the Supreme Court explained that it was not recognizing any new right."); Dawkins v. United States, 829 F.3d 549, 551 (7th Cir. 2016). "Mathis did not announce such a rule."); United States v. Taylor, No. 16-6223, 2016 WL 7093905, at *4 (10th Cir. Dec. 6, 2016) ("Mathis did not announce a new rule."); Blackwell v. United States, No. 4:10-CR-00012, 2016 WL 5849384, at *5 (W.D. Va. Oct. 6, 2016) ("[T]he Supreme Court torpedoed the argument that Mathis treads new ground. By the Court's own admission, Mathis does not set a new rule."). Any argument that Mathis announced a new rule is thus at odds with the express language in the Mathis opinion.
In addition to Mathis, Mr. Sandlain also relies on the Fifth Circuit's decision in United States v. Hinkle. However, that case does not compel a different conclusion. Hinkle involves a defendant who was convicted on a guilty plea of possession with the intent to distribute cocaine. United States v. Hinkle, 832 F.3d 569, 571 (5th Cir. 2016). Hinkle was sentenced as a career offender. Id.
On appeal, Hinkle argued that based on Mathis, his prior convictions cannot constitute predicate offenses under the career-offender Guidelines. Id. The Fifth Circuit agreed, vacated Hinke's sentence and remanded the case for resentencing. Id. at 577. Mr. Sandlain's reliance on Hinkle is misplaced for two reasons. First, Hinkle appealed his conviction on direct appeal, not via habeas petition. Therefore, the limitations articulated in 28 U.S.C. § 2255(f) did not apply to Mr. Hinkle. In this case, Mr. Sandlain's vehicle for relief is a Rule 60 motion, which the Court construes as a second or successive habeas petition. Therefore, Mr. Sandlain must abide by the limitations in § 2255. Second, Hinkle cannot satisfy § 2255(f)(3). To satisfy § 2255(f)(3) the new right must be recognized by the Supreme Court. Hinkle was decided by Fifth Circuit. Even if the Fifth Circuit ruled (which it is has not) that Mathis announced a new rule, that is nevertheless insufficient to meet § 2255(f)(3). Therefore, neither Mathis nor Hinkle help Mr. Sandlain meet the statute of limitations.
Fourth, there are no new facts in this matters, only reemphasized and restated interpretations of decades-old law. Therefore, § 2255(f)(4) does not apply.
Even if the Court somehow did have jurisdiction over Mr. Sandlain's Mathis claims, Mr. Sandlain fails to meet any of the time limitations required under § 2255(f). Mr. Sandlain's Mathis claims, brought pursuant to 60(b)(5), are dismissed.
For the foregoing reasons:
Before Mr. Sandlain may appeal the Court's decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c)(1)(a); FED. R. APP. P. 22(b). A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). When a court denies relief on the merits, the substantial showing threshold is met if the petitioner demonstrates that reasonable jurists would find the court's assessment of the constitutional claim debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). When a court denies relief on procedural grounds without addressing the merits, a certificate of appealability should issue if it is shown that jurists of reason would find it debatable whether the petitioner states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the court was correct in its procedural ruling. Id.
The Sixth Circuit has not yet issued any published opinion addressing the timeliness of a petitioner's collateral attack relying on Mathis. Accordingly, the Court concludes that a certificate of appealability is warranted in this case. See United States v. Turner, No. 08-CR-20228, 2017 WL 1434306, at *3 (E.D. Mich. Apr. 24, 2017).
