Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Sutton

United States District Court, S.D. Ohio, Western Division

December 13, 2019

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
RANDALL SUTTON, Defendant/Petitioner.

          OPINION AND ORDER

          MICHAEL R. BARRETT, JUDGE

         These matters are before the Court on several motions by Defendant. While the motions are not captioned in any particular manner, the Court characterizes them as a motion for clarification regarding amended judgments (Doc. 246), a motion regarding amended judgments and for reconsideration of order granting in part and denying in part § 2255 motion (the “initial § 2255 order”) (Doc. 248), a motion to remove enhancement and to appoint counsel (Doc. 249), and a motion to remove enhancement (Doc. 251). These matters stem from Defendant's involvement in three Ohio bank robberies and one Kentucky bank robbery. The Court has already summarized the complicated procedural history providing the context for these motions in the initial § 2255 order entered September 30, 2015 (Doc. 211). The Court therefore begins with the procedural history subsequent to that order.

         I. BACKGROUND

         In the initial § 2255 order, the Court determined that it had erred in failing to elicit a guilty plea on federal bank robbery charges indicted in the Eastern District of Kentucky (“EDKY”) that were ultimately transferred to the Southern District of Ohio pursuant to Fed. R. Crim. P. 20(a). These EDKY charges had been consolidated with this case under case number 07-cr-078. As a result, on December 11, 2015, the Court held a status conference on the EDKY charges. (Case no. 07-cr-078, Doc. 25). After consultation with counsel, Defendant elected to not plead guilty to the EDKY indictment (Case no. 07-cr-078, Doc. 1) and the case was accordingly transferred back to the EDKY (Covington) for further disposition consistent with Fed. R. Crim. P. 20(c). (Case no. 07-cr-078, Docs. 26, 28).

         Several months later, consistent with its initial § 2255 order, the Court entered an amended judgment on June 17, 2016 (Doc. 213) that removed references to the EDKY case number, EDKY indictment counts, and punishments premised thereon in order to effectuate the vacated judgment and conviction related to the EDKY charges. Days later, on June 22, 2016, the Court entered a further amended judgment (Doc. 218) that removed criminal monetary penalties related to the Kentucky financial institution connected to the EDKY indictment that had been inadvertently left in the June 17, 2016 amended judgment.

         II. ANALYSIS

         A. Motion for clarification (Doc. 246)

         Defendant's first motion seeks clarification as to the amended judgments entered on June 17 and June 22 of 2016. (Docs. 213, 218). The motion will be granted and the Court offers clarification as follows. The amended judgment entered June 22, 2016 removed, from pages five and six, the criminal penalties associated with the EDKY charges that should have been but mistakenly were not removed in the June 17, 2016 amended judgment. It also corrected the date of the original judgment from August 31, 2017 to August 31, 2007. Defendant also flags the difference between the PAGEID numbers assigned to the June 17 and June 22, 2016 amended judgments in his motion at Doc. 248. The “PAGEID #” notation, located at the top of every page of all docketed filings, refers to a page's sequential place within the record of a case; it does connote the substance of, or case related to, a particular filing.

         B. Motion regarding amended judgments and for reconsideration of the initial § 2255 order (Doc. 248)

         By this motion, the Court believes Defendant to allege the following related to the amended judgments (Docs. 213 and 218), the EDKY judgment (Case no. 2:05-cr-090-DLB-CJS Doc. 137)), and the initial § 2255 order:

1. The Court should have reopened the presentence investigation report (“PSR”) to the extent that the EDKY charges affected its conclusions.
2. The Court should have reopened the plea agreement to remove reference to the EDKY charges.
3. The EDKY judgment imposing a 300-month prison term in EDKY case number 2:05-cr-090-DLB-CJS (Doc. 137), entered April 29, 2016, should have been entered subsequent to the June 16 and June 22, 2016 amended judgments in this case.

         As an initial matter, the Court must determine whether it has jurisdiction to consider the issues alleged. Defendant asks the Court to “reconsider” his “§ 2255 Granted” but does not specify a particular rule or statute under which he moves. (Doc. 248, PAGEID #: 1836). While the Court, generally, should liberally construe a pro se motion for consideration as a motion for relief from judgment under 60(b), Mohwish v. Reno, 132 F.3d 33, at *1 (6th Cir. 1997), the Court is also tasked with determining whether such a motion is in fact a second or successive § 2255 motion. See In re Nailor, 487 F.3d 1018, 1021 (6th Cir. 2007); see also Rule 12, Rules Governing Sec. 2255 Proceedings (“The Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules.” (emphasis added)). In Nailor, the Sixth Circuit summarized the analysis as follows: “A Rule 60(b) motion that attempts to ‘add a new ground for relief' is effectively a motion to vacate, set aside, or correct the sentences, and thus should be considered a § 2255 motion.” Nailor, 487 F.3d at 1022 (quoting Gonzalez v. Crosby, 545 U.S. 524, 532, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005)). If the Court determines that this motion is a second or successive § 2255 motion, the motion must be transferred to the court of appeals for preauthorization. 28 U.S.C. § 2244(b)(3)(A) (“Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.”); see also In re Sims, 111 F.3d 45, 47 (6th Cir. 1997) (“[W]hen a second or successive . . . § 2255 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.