717 F.3d 1108
10th Cir.2013Background
- Weathersby moves for authorization to file a second or successive §2255; the court dismisses as unnecessary.
- Convicted of two federal drug offenses in March 2002 and sentenced to 292 months; direct appeal affirmed.
- Filed §2255 in February 2008; district court dismissed as untimely; no appeal.
- May 2009 Rule 60(b) motion; district court denied merits on two claims and treated a third as unauthorized and transferred it.
- Weathersby later sought remand, which this court denied; he appealed the denial of his Rule 60(b) motion and that appeal was dismissed as untimely.
- He now contends six California convictions used in calculating his federal criminal history were vacated after his first §2255 proceeding, and seeks to reopen based on those vacatur orders; court analyzes whether such a claim is "second or successive" and subject to authorization.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the proposed §2255 motion is "second or successive" requiring authorization | Weathersby contends the vacatur of state convictions after his first proceeding creates a new basis. | Weathersby must obtain circuit authorization only if the claim is ripe as a second/successive §2255 | Not second/successive if basis did not exist during prior proceeding. |
| Whether post-first-proceeding state-vacatur claims are ripe and non-successive | States’ vacatur created a new basis for relief after the first §2255. | Ripeness/time of basis matters determine non-successive status. | If vacatur occurred after the first §2255 concluded, claim not ripe and not second/successive. |
| Whether the claim is timely or meritorious remains open | Vacatur timing may affect timeliness and merit. | Timeliness and merits depend on notice timing and effect of vacatur. | Court expresses no ruling on timeliness or merit; only on authorization necessity. |
Key Cases Cited
- Panetti v. Quarterman, 551 U.S. 930 (2007) (definition of 'second or successive' not by mere timing; ripe timing matters)
- Magwood v. Patterson, 130 S. Ct. 2788 (2010) (creat[es] exception for unripe claims becoming ripe later)
- Johnson v. United States, 544 U.S. 295 (2005) (vacatur-based federal relief requires state-vacatur to occur; timeliness noted)
- Leal Garcia v. Quarterman, 573 F.3d 214 (5th Cir. 2009) (second petition where defect arises after prior petition may be non-successive)
- Stewart v. United States, 646 F.3d 856 (11th Cir. 2011) (persuasive on non-successive claim when basis arises post-petition)
- United States v. Cox, 83 F.3d 336 (10th Cir. 1996) (basis for expungement/dismissal affects inclusion in federal calculations)
- United States v. Obeid, 707 F.3d 898 (7th Cir. 2013) (ripe-not-ripe analysis for non-succession)
- In re Jones, 652 F.3d 603 (6th Cir. 2010) (ripe-gap-based assessment for non-successive)