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United States v. Hall

United States District Court, D. Utah

January 22, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
VIRGIL HALL, Defendant.

          MEMORANDUM DECISION AND ORDER DISMISSING DEFENDANT’S MOTION TO SET ASIDE JUDGMENT

          Ted Stewart, United States District Judge

         This matter is before the Court on Defendant Virgil Hall’s Motion to Set Aside Judgment under Federal Rule of Civil Procedure 60(d)(3). For the reasons discussed below, the Court finds Defendant’s Motion to be an unauthorized second or successive § 2255 petition and that it is not in the interest of justice to transfer the Motion to the Tenth Circuit Court of Appeals. Therefore, the Court will dismiss this matter for lack of jurisdiction.

         I. BACKGROUND

         On December 15, 2010, Defendant was charged in a one-count Indictment alleging possession with intent to distribute 500 grams or more of cocaine. Defendant proceeded to trial, and on June 9, 2011, a jury found him guilty. Defendant was sentenced on November 8, 2011, to 120 months in custody and 60 months of supervised release.

         Defendant timely appealed. On appeal, Defendant argued only that this Court erred by admitting inadmissible 404(b) evidence at trial. The Tenth Circuit disagreed and entered judgment affirming this Court’s decision on January 25, 2013.

         On May 12, 2014, Defendant filed a motion under 28 U.S.C. § 2255. Defendant asserted several grounds for relief. Relevant here, Defendant challenged the legitimacy of the Indictment, arguing that it lacked the requisite signatures by the U.S. Attorney and the foreperson of the grand jury. In response, the United States provided the Court with a copy of the original Indictment to review in camera. The Court denied the § 2255 motion and the Tenth Circuit denied a certificate of appealability.

         Defendant now files the instant Motion arguing that the judgment must be set aside based on the prosecutor’s alleged fraud on the Court. In particular, Defendant argues that the Indictment provided to the Court to review in camera differs in several respects from the Indictment that is on file with the Clerk of Court.[1] Defendant argues that providing this Indictment in camera prevented him from challenging the Indictment and was done to deceive the Court.

         II. DISCUSSION

         Before the Court can reach the merits of Defendant’s Motion, the Court must first determine whether the motion is a second or successive § 2255 petition. If the motion is a second or successive petition, the Court lacks jurisdiction to consider it absent authorization from the Court of Appeals.[2]

         “A prisoner’s post-judgment motion is treated like a second-or-successive § 2255 motion . . . if it asserts or reasserts claims of error in the prisoner’s conviction.”[3] “[A] motion alleging fraud on the court in a defendant’s criminal proceeding must be considered a second-or-successive collateral attack because it asserts or reasserts a challenge to the defendant’s underlying conviction.”[4] “In contrast, if the motion ‘seeks to correct an error in the previously conducted [§ 2255] proceeding itself,’ it is not characterized as a successive motion.”[5]

         Under this analysis, the Court finds that Defendant’s Motion is a second or successive petition. Defendant primarily argues that the Court lacked jurisdiction in his underlying criminal case because of alleged defects in the grand jury indictment and that his conviction must be set aside based on those defects. This same claim was raised in his original § 2255 motion. As such, it is an unauthorized second or successive motion because it reasserts a challenge to his underlying conviction. Without authorization from the Tenth Circuit Court of Appeals, the Court lacks jurisdiction to consider this claim.

         Defendant also appears to argue that there was a defect in the original § 2255 proceeding. Under the circumstances presented here, the Court finds that this too is a second or successive petition. A motion is not a second or successive habeas petition if it attacks “some defect in the integrity of the federal habeas proceedings” without attacking “the substance of the federal court’s resolution of a claim on the merits.”[6] “Fraud on the federal habeas court is one example of such a defect.”[7] “However, if the fraud on the habeas court includes (or necessarily implies) related fraud on . . . the federal district court that convicted and/or sentenced the movant . . ., then the motion will ordinarily be considered a second or successive petition because any ruling would inextricably challenge the underlying conviction proceeding.”[8]

         Here, Petitioner’s alleged fraud in his § 2255 proceeding “lead[s] inextricably to a merits-based attack on the disposition of [his] prior habeas petition.”[9] Defendant argues that the prosecutor engaged in fraudulent conduct during his initial § 2255 proceedings by submitting a copy of the original Indictment to the Court to review in camera. Defendant argues this was done to “deceive the court” and to “throw the Judge off the jurisdiction claim” Defendant raised in his original § 2255 motion.[10] This argument necessarily leads to an attack on the merits of the Court’s disposition of Defendant’s original § 2255 motion, which alleged that the Court lacked jurisdiction based on alleged defects with the Indictment. This argument would also challenge the underlying criminal proceeding. As such, the Court finds that Defendant’s Motion is properly construed as a second or successive § 2255.[11]

         “Before a federal prisoner may file a second or successive motion under § 2255, the prisoner must first obtain an order from the appropriate court of appeals authorizing the district court to consider the motion.”[12] “A district court does not have jurisdiction to address the merits of a second or successive § 2255 . . . claim until [the appropriate court of appeals] has granted the required authorization.”[13] However, before transferring a second or successive motion ...


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