United States District Court, S.D. Ohio, Western Division
OPINION AND ORDER
MICHAEL R. BARRETT, JUDGE
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.
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).
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.
Motion for clarification (Doc. 246)
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.
Motion regarding amended judgments and for reconsideration of
the initial § 2255 order (Doc. 248)
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.
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