United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. UAGAN DISTRICT JUDGE.
before the Court is Defendant's Motion to Vacate Count I
(Dkt. # 1219). Defendant Timothy John Vaughn asks the Court
to vacate his conviction for drug conspiracy or reduce his
sentence based on a decision by the United States District
Court for the Eastern District of New York. See United
States v. Holloway, 68 F.Supp.3d 310 (E.D.N.Y.
2014). The Court has reviewed defendant's
motion and finds that it is not necessary for the government
to file a response.
April 6, 2001, Timothy John Vaughn and others were charged in
a superseding indictment with conspiracy to possess with
intent to distribute and to distribute cocaine and marijuana
(count one). Dkt. # 8. A second superseding indictment (Dkt.
# 100) was returned adding allegations that the conspiracy
involved possession with intent to distribute and the
distribution of cocaine base (crack). The government filed an
enhancement information (Dkt. # 443) stating that it intended
to seek a statutory enhancement of defendant's sentence
if he were convicted, and defendant was on notice that he
would receive a mandatory life sentence if convicted. Vaughn
exercised his right to a jury trial and was convicted. Dkt.
## 543, 546.
presentence investigation report (PSR) was prepared and it
noted that defendant had three prior convictions that
qualified as crimes of violence or controlled substance
offenses under United States Sentencing Guideline §
4B1.1. Two of the qualifying offenses were controlled
substance offenses. Defendant's advisory guideline range
was increased to 37 based on the career offender provision,
but ultimately this had no effect on defendant's
sentence. Defendant was subject to a mandatory life sentence
because of the enhancement information filed by the
government, even though his advisory guideline range was 360
months to life imprisonment. Defendant was sentenced to life
imprisonment and defendant filed a notice of appeal
challenging his conviction. On June 7, 2004, the Tenth
Circuit Court of Appeals issued a decision denying
defendant's appeal. Dkt. # 855. Defendant did not file a
petition for writ of certiorari and his conviction became
final on September 5, 2004.
August 8, 2016, the Court received a § 2255 motion filed
by defendant arguing that he was entitled to relief under the
Supreme Court's decision in United States v.
Johnson, 135 S.Ct. 2551 (2015). The Court entered an
opinion and order (Dkt. # 1198) denying defendant's
§ 2255 motion, and the Tenth Circuit denied
defendant's request for a certificate of appealability.
Dkt. # 1216.
again asks the Court to vacate his conviction or reduce his
sentence, and he argues that he would receive a less severe
sentence if he were re-sentenced under an advisory, rather
than mandatory, guideline system. Dkt. # 1219. 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. # 1219) 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 he would likely receive a lower sentence if he were
re-sentenced under an advisory guideline system. However,
this Court does not have the inherent authority to modify a
previously imposed sentence, and this Court may only
re-sentence a defendant pursuant to statutory authorization.
United States v. Mendoza, 118 F.3d 707, 709 (10th
Cir. 1997). Even if defendant would receive a lesser
sentence, the Court lacks the authority to vacate or modify
his sentence based on a perception that his sentence was
unduly harsh or severe. There is no reason to transfer
defendant's motion (Dkt. # 1219) to the Tenth Circuit and
his motion should be dismissed for lack of jurisdiction.
THEREFORE ORDERED that Defendant's Motion to Vacate Count
I (Dkt. # 1219) is dismissed for lack of jurisdiction. A
separate judgment of dismissal is entered herewith.