United States District Court, D. Minnesota
N. ERICKSEN United States District Judge.
March 2011, a jury found Defendant guilty of the crime of
being a felon in possession of a firearm. The Court sentenced
him to 235 months' imprisonment. Defendant appealed, and
the Eighth Circuit affirmed. United States v.
Varner, 678 F.3d 653 (8th Cir. 2012).
January 2013, Defendant moved for a new trial. Two months
later, the Court denied his motion.
August 2013, Defendant moved to vacate, set aside, or correct
his sentence under 28 U.S.C. § 2255. In December 2013,
the Court denied his § 2255 motion and denied a
certificate of appealability. Defendant appealed. The Eighth
Circuit denied his application for a certificate of
appealability and dismissed his appeal. Defendant filed a
petition for a writ of certiorari, which the Supreme Court
December 2015, Defendant petitioned the Eighth Circuit for
permission to file a second or successive § 2255 motion.
In June 2016, the Eighth Circuit denied Defendant's
February 2018, Defendant filed a Habeas Motion, as well as an
Application to Proceed in District Court without Prepaying
Fees or Costs. In the first paragraph of his Habeas Motion,
Defendant asserted that Rule 60(b) of the Federal Rules of
Civil Procedure, 18 U.S.C. § 3742(a), Rule 33 and Rule
52 of the Federal Rules of Criminal Procedure, 28 U.S.C.
§ 2241, 28 U.S.C. § 2255, the U.S. Constitution,
“and any or all other applicable federal rules and
statutes” vest jurisdiction in this Court “to
issue writs of habeas corpus in response to a petition from a
state or federal prisoner who ‘is in custody in
violation of the Constitution or laws or treaties of the
United States.'” The next month, the Court noted
that Defendant had “filed a pro se Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence.” The Court ordered the government to respond
by April 2, 2018.
in March, the Court received Defendant's “Notice of
Mischaracterization of Petitioner's Habeas Motion
Pursuant to Fed.R.Civ.P. Rule 60(b), and Demand for
Adjudication under Rule 60(b).” Defendant asserted that
he intended to bring the Habeas Motion under Rule 60(b) of
the Federal Rules of Civil Procedure; that the Court
recharacterized the motion as a § 2255 motion without
giving him the warnings set forth in Castro v. United
States, 540 U.S. 375 (2003); and that the motion should
be considered as a Rule 60(b) motion.
government moved to dismiss Defendant's Habeas Motion.
The government asserted that the Eighth Circuit did not
authorize Defendant to file a second or successive §
2255 motion, that Defendant's Habeas Motion is a
successive § 2255 motion, and that Defendant's
Habeas Motion should be dismissed.
limitation on “lower courts' recharacterization
powers” that the Supreme Court imposed in
Castro “applies when a court recharacterizes a
pro se litigant's motion as a first § 2255
motion.” 540 U.S. at 383 (emphasis added). The
limitation does not apply here because Defendant's Habeas
Motion was not recharacterized as his first § 2255
motion. See United States v. Carranza, 467 Fed.Appx.
543, 543-44 (8th Cir. 2012) (per curiam).
is well-established that inmates may not bypass the
authorization requirement of 28 U.S.C. § 2244(b)(3) for
filing a second or successive § 2254 or § 2255
action by purporting to invoke some other procedure.”
United States v. Lambros, 404 F.3d 1034, 1036 (8th
Cir. 2005) (per curiam). Defendant's Habeas Motion is a
second or successive § 2255 motion that Defendant filed
without authorization from the Eighth Circuit. The Court
therefore dismisses Defendant's Habeas Motion. See
id.; Boyd v. United States, 304 F.3d 813, 814
(8th Cir. 2002) (per curiam). The Court denies his motion to
amend or correct the characterization of his Habeas Motion,
as well as his application to proceed without prepaying fees
or costs. A certificate of appealability is denied. See
Lambros, 404 F.3d at 1036-37.
on the files, records, and proceedings herein, and for the
reasons stated above, IT IS ORDERED THAT:
1. The United States' Motion to Dismiss Defendant's
Habeas Motion [Docket No. 115] is GRANTED.
2. Defendant's Habeas Motion [Docket No. 111] is
3. Defendant's application to proceed without prepaying
fees or costs [Docket ...