Hahn v. United States

Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

MARCUS HAHN,

Petitioner,

v. No. 21-cv-0880 KWR-SMV No. 00-cr-0082 KWR-SMV

UNITED STATES OF AMERICA,

Respondent.

ORDER FOR LIMITED ANSWER

THIS MATTER is before the Court on Petitioner’s Amended Motion to Vacate Conviction Under 28 U.S.C. § 2255, filed September 19, 2022 [CV Doc. 15] (Amended Motion). Petitioner initiated this § 2255 proceeding on September 7, 2021. See [CV Doc. 1]; [CR Doc. 254]. The opening pleading was filed within one year after entry of the 2020 Judgment re-sentencing Petitioner. [CR Doc. 251]. However, it appears many of Petitioner’s claims address defects in the original criminal proceeding, which took place over 20 years ago. Petitioner already filed a § 2255 proceeding, and the current habeas claims may qualify as second/successive. See [CR Docs. 141, 149]; Spitznas v. Boone, 464 F.3d 1213, 1215 (10th Cir. 2006) (setting forth the standard for when to construe a habeas claim as a second/successive). The Court lacks jurisdiction over second/successive § 2255 claims absent authorization from the Tenth Circuit. See 28 U.S.C. § 2255(h); In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008). The Court will direct the United States to file a limited answer to the Amended Motion [CV Doc. 15] within 30 days of entry of this Order. The limited answer must address: (1) which claims, if any, are second/successive; (2) the extent to which Petitioner can challenge the Amended Judgment entered September 25, 2020; (3) which claims, if any, are potentially cognizable (Le., not barred as second or successive) based on that Amended Judgment; and (4) the merits of any potentially cognizable claims. Petitioner may file an optional 20-page reply brief within 21 days after the filing of the limited answer. However, Petitioner is reminded that the Amended Motion filed September 19, 2022 [CV Doc. 15] is the controlling pleading in this case. Petitioner received a final warning regarding his voluminous filings, see [Doc. 14], and if he continues to file amendments, supplements, and motions to reconsider aside from the single, 20-page reply, the Court may still dismiss this case on that basis. IT IS ORDERED that no later than November 3, 2022, the United States FILE a limited answer as set forth above. IT IS FURTHER ORDERED that Petitioner may file an optional reply within 21days after entry of the limited answer. IT IS SO ORDERED.

STEPHAN M. VIDMAR United States Magistrate Judge