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United States v. Jones

United States District Court, D. Minnesota

May 17, 2017

United States of America, Plaintiff,
v.
Kenneth Wendell Jones, Defendant. Civ. No. 98-1255 (RHK)

          ORDER

          RICHARD H. KYLE United States District Judge

         This matter is before the Court on the Motion of Defendant Kenneth Wendell Jones to reopen this Court's November 30, 1998, Judgment denying Jones' motion under 28 U.S.C. § 2255 to vacate his conviction. The present Motion is nominally brought pursuant to Federal Rule of Civil Procedure 60(d)(3). The Government contends it is in reality a second § 2255 Motion that Jones has filed without first obtaining authorization from the Eighth Circuit Court of Appeals. The Court agrees and will therefore dismiss the Motion for lack of jurisdiction.

         FACTUAL BACKGROUND

         Defendant Kenneth Wendell Jones was convicted after a jury trial in November 1995 of murder in connection with a continuing criminal enterprise (CCE), engaging in a continuing criminal enterprise, and conspiracy to distribute cocaine. His conviction and sentence were affirmed on direct appeal. United States v. Jones, 101 F.3d 1263 (8th Cir. 1996).

         In 1998, Jones filed a § 2255 motion challenging his conviction on the grounds that the confession of his co-defendant Jeffrey Barnes allegedly was not properly redacted at their joint trial to eliminate any reference to Jones; that the evidence in support of his CCE murder conviction was insufficient; and that newly discovered evidence (unspecified in the petition) warranted a new trial.

         In an Order dated November 30, 1998, this Court denied Jones' § 2255 motion in all respects. On September 22, 1999, the Eighth Circuit affirmed this Court's denial of a certificate of appealability.

         Now, more than 18 years after this Court's denial of Jones' § 2255 motion, Jones seeks to re-open that judgment pursuant to Federal Rule of Civil Procedure 60(d)(3), based primarily on evidence he claims was discovered in 2009. Specifically, he relies mainly on a 2009 interview of Government witness Russell Barnes in which Barnes partially recants his trial testimony.

         DISCUSSION

         A defendant may not file a second or successive motion under 28 U.S.C. § 2255 unless he obtains authorization from the appropriate circuit court of appeals. In order to obtain authorization, the defendant must make a prima facie showing that his proposed motion satisfies one of the gatekeeping requirements set forth in § 2255(h). That statute provides:

A second or successive motion must be certified as provided in § 2244 by a panel of the appropriate court of appeals to contain --
(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 fact finder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

28 U.S.C. § 2255(h).

         Although Jones styles his pleading as a Rule 60(d)(3) Motion rather than a second § 2255 Motion, his label is not controlling. Rather, it is the nature of the relief requested, not the caption of the pleading, that determines whether it is to be treated as a second or successive § 2255 Motion. Gutierrez v. United States, Crim. No. 01-331, 2013 WL 3380313 at *2 (D. Minn. July 8, 2013) (Montgomery, J.) (citing cases). If the motion is an attack on the validity of the underlying conviction, or an attempt to ...


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