United States v. Fishman
701 F. App'x 707
| 10th Cir. | 2017Background
- Steven Fishman was convicted of conspiracy to commit mail/wire fraud and money laundering and sentenced to 262 months; this court affirmed his conviction and sentence.
- In a 2012 28 U.S.C. § 2255 petition Fishman challenged his criminal-history calculation, arguing the district court double-counted an obstruction conviction in violation of USSG § 4A1.2/4A1.1(a)(2), and alleged ineffective assistance for failing to object.
- The district court rejected the § 2255 claim based on undisputed PSR facts showing an intervening arrest, so the two prior sentences were properly counted separately. This court denied a COA on Fishman’s subsequent appeal.
- Co-defendant Joseph Thornburgh later prevailed on a § 2255 double-counting challenge because his PSR lacked the same intervening-arrest facts and the government conceded error; Thornburgh was resentenced to a substantially shorter term.
- After Thornburgh’s success, Fishman filed a Rule 60(b) motion seeking relief for a sentencing disparity under 18 U.S.C. § 3553(a)(6), contending his prior § 2255 claim was indistinguishable and was wrongly decided.
- The district court treated Fishman’s filing as an unauthorized second or successive § 2255 motion and dismissed for lack of circuit authorization; Fishman sought a COA to appeal that dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Fishman’s Rule 60(b) motion was a true Rule 60(b) motion or an unauthorized second/successive § 2255 | Fishman: motion merely sought reconsideration of sentence disparity and alleged prior error; characterized as Rule 60(b) relief | Government/District Court: substance reasserted merits of prior § 2255 sentencing claim, so it is a successive § 2255 requiring authorization | Motion was in substance a second or successive § 2255 and thus unauthorized; dismissal for lack of jurisdiction affirmed |
| Whether Rule 60(b) may be used to relitigate a merits ruling in a prior § 2255 proceeding | Fishman: sought to challenge district court’s prior merits ruling on § 4A1.1(a)(2) | Court: Rule 60(b) cannot be used to challenge prior merits determinations in habeas/§ 2255 context | Court held Rule 60(b) cannot be used to vindicate a claim previously denied on the merits |
| Whether the district court should have transferred the motion for circuit authorization under 28 U.S.C. § 1631/§ 2244(b)(3) | Fishman: implied transfer/authorization should be considered given Thornburgh’s success | District Court: transfer unnecessary because Fishman could not meet successive-motion authorization standards; claim lacked merit | District court properly dismissed rather than transferred; no basis to authorize a successive § 2255 |
| Whether Fishman’s sentencing challenge could satisfy § 2255(h) authorization standards | Fishman: disparity with Thornburgh shows merit/new basis for relief | Government: sentencing claim is not newly discovered evidence of innocence nor a new retroactive constitutional rule | Court held Fishman’s claim cannot satisfy § 2255(h)(1) or (2); no authorization possible |
Key Cases Cited
- Slack v. McDaniel, 529 U.S. 473 (COA standard)
- Gonzalez v. Crosby, 545 U.S. 524 (Rule 60(b) cannot be used to raise or reassert habeas claims)
- Spitznas v. Boone, 464 F.3d 1213 (10th Cir. application of Gonzalez in habeas/§ 2255 context)
- In re Cline, 531 F.3d 1249 (10th Cir. standards on transfer/authorization of successive petitions)
- United States v. Fishman, 645 F.3d 1175 (10th Cir. 2011) (appellate decision affirming conviction and sentence)
- United States v. Baker, 718 F.3d 1204 (10th Cir. application of Gonzalez/Spitznas principles)