United States District Court, D. Minnesota
RICHARD H. KYLE United States District Judge
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.
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.
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.
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.
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.
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
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
(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).
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