United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN, UNITED STATES DISTRICT JUDGE.
before the Court is defendant's Motion for Relief from a
Judgment or Order Due to a Disparity in Sentencing Between
Defendant Fishman and Co-Defendant Thornburgh Pursuant to
Federal Rule of Civil Procedure 60(b)(1)(6) (Dkt. # 572).
Defendant argues that his co-defendant, Joseph Lynn
Thornburgh, has been set for re-sentencing, and defendant
asks that he also be re-sentenced to avoid a sentencing
disparity between similarly-situated defendants.
November 30, 2007, a grand jury returned an indictment (Dkt.
# 2) charging defendant and three others with conspiracy to
commit mail and wire fraud (count one) and conspiracy to
commit money laundering (count two). Defendant made his initial
appearance on September 11, 2008 and counsel was appointed to
represent him. Defendant exercised his right to a jury trial
and he was convicted of both counts. Dkt. # 288. A
presentence investigation report (PSR) was prepared and
defendant's advisory guideline range as to imprisonment
was 262 to 327 months. On October 23, 2009, defendant was
sentenced to 262 months imprisonment, and the judgment and
commitment was filed on October 29, 2009. Defendant filed a
direct appeal challenging his convictions and sentence, and
his convictions and sentence were affirmed. Dkt. # 462.
Defendant filed a petition for writ of certiorari, and
defendant's convictions became final when his petition
for writ of certiorari was denied on January 9, 2012. Dkt. #
filed a motion to dismiss the indictment (Dkt. # 477) and a
petition for writ of habeas corpus under 28 U.S.C. §
2241 (Dkt. # 478). The Court entered an order (Dkt. # 481)
advising defendant that his motions would be recharacterized
as motions for relief under § 2255, and defendant could
withdraw his motions and file an amended § 2255 motion
asserting all of his claims. Defendant filed an amended
motion to vacate, set aside, or correct sentence under §
2255 (Dkt. # 491). The Court denied defendant's §
2255 motion, and this Court and the Tenth Circuit Court of
Appeals denied his request for a certificate of
appealability. Dkt. ## 538, 541, 547. Defendant filed a
motion (Dkt. # 550) seeking relief under Johnson v.
United States, 135 S.Ct. 2551 (2015). The Court
dismissed his motion for lack of jurisdiction. Dkt. # 555.
Defendant sought permission from the Tenth Circuit to proceed
with a second or successive § 2255 motion, and his
request was denied. Dkt. # 570. On January 13, 2017, the
Court granted a co-defendant's § 2255 motion. Dkt. #
562. The Court found that the co-defendant, Thornburgh,
received ineffective assistance of counsel at his sentencing
hearing when his attorney failed to raise an error in the
calculation of Thornburgh's criminal history category,
and the error affected Thornburgh's advisory guideline
range. Thornburgh has been set for re-sentencing, but the
Court rejected Thornburgh's challenges to his
convictions. Dkt. # 562.
asks the Court to vacate his sentence based on the
Court's decision to grant Thornburgh's § 2255
motion. Dkt. # 572. The Court finds that defendant's
motion should be treated as a second or successive §
2255 motion, because he is challenging the validity of his
sentence and he has already filed a § 2255 motion that
has been denied. This Court lacks jurisdiction to consider a
second or successive § 2255 motion, because defendant
must request permission from the Tenth Circuit to file a
second or successive § 2255. See 28 U.S.C.
§ 2255(h); United States v. Nelson, 465 F.3d
1145, 1148 (10th Cir. 2006); United States v.
Torres, 282 F.3d 1241, 1246 (10th Cir. 2002). A second
or successive motion under § 2255 will only be permitted
in two situations:
(1) 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;
(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
28 U.S.C. § 2255(h). In order for a federal prisoner to
proceed under § 2255(h)(2), the Supreme Court must
explicitly hold that a new rule applies to cases on
collateral review. Bey v. United States,
399 F.3d 1266 (10th Cir. 2005).
Tenth Circuit has determined that “[w]hen a second or
successive § 2254 or § 2255 claim is filed in the
district court without the required authorization from this
court, the district court may transfer the matter to this
court if it determines it is in the interest of justice to do
so under § 1631, or it may dismiss the motion or
petition for lack of jurisdiction.” In re
Cline, 531 F.3d 1249, 1252 (10th Cir. 2008). Citing
Trujillo v. Williams, 465 F.3d 1210, 1223 n.16 (10th
Cir. 2006), the Tenth Circuit stated that “[f]actors
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.” Cline, 531 F.3d at 1251.
“Where 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 to this
court for authorization.” Id. at 1252 (citing
Phillips v. Seiter, 173 F.3d 609, 610 (7th Cir.
1999) (noting that it is a waste of judicial resources to
require the transfer of frivolous, time-barred cases).
Court finds that there is no risk that defendant will be
prevented from litigating a meritorious claim if his motion
(Dkt. # 572) is not transferred to the Tenth Circuit.
Defendant has not raised a constitutional challenge to the
validity of his sentence, and there is no likelihood that the
Tenth Circuit would allow defendant to proceed with a second
or successive § 2255 motion. Instead, defendant claims
that there will be an unfair disparity between his sentence
and the sentence imposed at Thornburgh's resentencing
hearing. The need to avoid unwarranted sentencing disparities
is a factor that a district court must consider at the time
of sentencing under 18 U.S.C. 3553(a), but this statute does
not give district courts the authority to revisit a sentence
that has already been imposed. The Court also notes that the
issue that resulted in the granting of Thornburgh's
§ 2255 motion would not support a reduction of
defendant's sentence. The Court found that Thornburgh
received ineffective assistance of counsel at sentencing,
because his attorney failed to object to the double-counting
of a conviction for the purpose of determining
Thornburgh's criminal history category. The Court has
reviewed defendant's PSR and there is no possibility of a
similar error in the calculation of defendant's criminal
history category. There is no reason to transfer
defendant's motion (Dkt. # 572) to the Tenth Circuit and
his motion should be dismissed for lack of jurisdiction.
THEREFORE ORDERED that defendant's Motion for Relief from
a Judgment or Order Due to a Disparity in Sentencing Between
Defendant Fishman and Co-Defendant Thornburgh Pursuant to
Federal Rule of Civil Procedure 60(b)(1)(6) (Dkt. # 572) is
dismissed for lack of jurisdiction. A separate judgment of
dismissal is entered herewith.
 A superseding and second superseding
indictment were later returned by a grand jury, but no
additional defendants or charges were added in the subsequent