United States v. DeWilliams

49 F. Supp. 3d 883, 2014 WL 2895268
CourtDistrict Court, D. Colorado
DecidedJune 25, 2014
DocketCriminal Action No. 99-cr-00120-REB (Civil Action No. 14-cv-01588-REB)
StatusPublished

This text of 49 F. Supp. 3d 883 (United States v. DeWilliams) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. DeWilliams, 49 F. Supp. 3d 883, 2014 WL 2895268 (D. Colo. 2014).

Opinion

ORDER DENYING 28 U.S.C. § 2255 MOTION AND DIRECTING MOV-ANT TO SHOW CAUSE

Blackburn, United States District Judge

This matter is before the court on Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 [# 476]2 filed June 5, 2014. The movant, Gary DeWilliams, also known as Gary D. DeWilliams, is a prisoner in the custody of [885]*885the Federal Bureau of Prisons incarcerated at the United States Penitentiary in Leavenworth, Kansas.

The court has construed the motion to vacate liberally because Mr. DeWilliams is a pro se litigant. See Haines v. Kemer, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). However, the court may not act as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. Additionally, the court may take judicial notice of its own records and files that are part of the court’s public records. See St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir.1979).

For the reasons stated below, the motion is denied. In addition, Mr. DeWil-liams is ordered to show cause why he should not be prohibited from filing new actions challenging his criminal conviction in Criminal Action No. 99-cr-000120-REB-1 without either the representation of a licensed attorney admitted to practice in the United States District Court for the District of Colorado or the permission of the court to proceed pro se.

In the above-captioned case, Mr. DeWil-liams was found guilty of possession of a firearm and ammunition by a convicted felon. The United States Court of Appeals for the Tenth Circuit (Tenth Circuit) affirmed. See United States v. DeWilliams, 85 Fed.Appx. 154 (10th Cir.2004). Mr. DeWilliams also is serving a twenty-five year sentence for an unrelated, 1988 conviction for bank robbery and making a false statement. The instant § 2255 motion seeks to vacate the 2002 conviction.

Mr. DeWilliams sought relief previously under § 2255 in this criminal action. See United States v. DeWilliams, No. 05-ev-00893-REB (D.Colo. Aug. 12, 2008) [# 396]. In his initial § 2255 motion [# 354], Mr. DeWilliams raised twenty claims and additional claims in supplements. See [# 385 & # 387]. On August 12, 2008, the court granted Mr. DeWil-liams’ two motions to amend or supplement filed on May 22, 2006 [#385], and August 10, 2006 [# 387], to the extent they sought leave to amend the § 2255 motion; denied the § 2255 motion; and denied Mr. DeWilliams’ request for a certificate of appealability. See [# 396], Mr. DeWil-liams appealed, and on February 27, 2009, the Tenth Circuit denied his request for a certificate of appealability and dismissed the appeal. See [#415]. On June 29, 2009, the United States Supreme Court denied Mr. DeWilliams’ petition for writ of certiorari. See [# 418]. On September 7, 2012, the Tenth Circuit denied him authorization to file a second or successive § 2255 motion challenging the 2002 conviction. See [# 426].

On October 24, 2012, Mr. DeWilliams filed a motion titled Motion for Relief Pursuant to Federal Rules of Civil Procedure, Rule 60(b)(6) [# 429]. On August 9, 2013, the court entered an order [# 447] construing the Rule 60(b) motion as either (1) a request that this court vacate the Tenth Circuit’s February 27, 2009, order [#415] denying his request for a certificate of appealability, or (2) a successive § 2255 motion, and denying the motion for lack of jurisdiction. On October 18, 2013, the Tenth Circuit dismissed Mr. DeWil-liams’ appeal from the August 9, 2013, order. See [# 464].

On February 18, 2014, Mr. DeWilliams filed a motion titled Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255(f)(2), (4) [# 467]. See United States v. DeWilliams, No. 14-cv-00430-REB (D.Colo. Feb. 18, 2014) [#468]. In No. 14-cv-00430-REB, Mr. DeWilliams asserted two claims, which he failed to state or indicate clearly whether either was raised previously on direct ap[886]*886peal or in a prior action. See [# 467] at 5. In claim one, he challenged the disposition of his prior § 2255 motion because a motion to amend or supplement he contended he hand-delivered to prison officials on May 21, 2005, was never mailed to the court. In his second claim, he contended that not until August 20, 2013, did he discover that the motion to amend or supplement his § 2255 motion was never mailed to the court. He contended that prison officials, by failing to mail the motion to amend or supplement, impeded the disposition of his prior § 2255 motion. He asked the court to reopen the prior § 2255 action to allow him to assert a claim that he was impeded in filing the motion to amend or supplement. He failed to submit the motion of May 21, 2005, or allege its contents. On February 24, 2014, the court denied the § 2255 motion as an unauthorized and unwarranted second or successive motion. See [# 468].

On May 14, 2014, Mr. DeWilliams filed a motion titled Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255(f)(2), (4) [# 472] seeking review of the order [#447] denying his Rule 60(b) motion and the order [#468] denying his most recent prior § 2255 motion. On June 5, 2014, the court denied the § 2255 motion because it too was a second or successive motion. See [# 474]. In the June 5, 2014, order, the court also warned Mr. DeWilliams of possible sanctions for abusing the judicial process by repeatedly filing unauthorized successive § 2255 motions. See [# 474] at 7.

On June 5, 2014, the same day the court denied the § 2255 motion filed on May 14, 2014, Mr. DeWilliams filed the motion at bar titled Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 [#476]. He asserts two claims: (1) that the “District Court Erred When It Determined Second Degree Burglary 18-4-203 Was a Violent Felony Categorically” (claim one) and “I Am Actually Innocent of Possession of a[n] INTRATE C-9.MM, Model AB-10, SemiAutomatic Weapon on February 25, 1999” (claim two). Mr. DeWilliams admits that he has not obtained the necessary Tenth Circuit authorization to file a second or successive § 2255 motion. See [# 476] at 5.

Under 28 U.S.C. § 2255(h) and 28 U.S.C. § 2244(b)(3), Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
49 F. Supp. 3d 883, 2014 WL 2895268, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-dewilliams-cod-2014.