United States of America v. Michael Lynn Cash

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL LYNN CASH,
Defendant - Appellant.
No. 21-7033
(D.C. Nos. 6:19-CV-00126-RAW &
6:11-CR-00057-RAW-1)
(E.D. Okla.)
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before HOLMES, McHUGH, and MORITZ, Circuit Judges.
_________________________________
Michael Lynn Cash, proceeding pro se, seeks a certificate of appealability (COA)
to appeal from the district court’s order dismissing his 28 U.S.C. § 2255 motion because
it was an unauthorized second or successive § 2255 motion. We deny a COA.
I. Background
In 2012, Mr. Cash was convicted of possession with intent to distribute
methamphetamine (Count 1), possession of a firearm in furtherance of a drug trafficking
crime (Count 2), and being a felon in possession of a firearm (Count 3). The probation
office recommended a sentence of 360 months’ imprisonment. The district court,
* This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
November 2, 2021
Christopher M. Wolpert
Clerk of Court
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however, sentenced Mr. Cash to 420 months in prison as follows: 240 months on
Count 1 and 360 months on Count 3, to run concurrently; and 60 months on Count 2, to
run consecutively to the terms imposed on Counts 1 and 3. Mr. Cash did not object to his
sentence and did not raise any sentencing challenges on direct appeal; he only challenged
his convictions. We affirmed the district court’s judgment.
In 2015, Mr. Cash filed a § 2255 motion, asserting that he received ineffective
assistance from his trial counsel and that the district court erred when it enhanced his
sentence on Count 3 pursuant to the Armed Career Criminal Act (ACCA) because his
predicate convictions did not support that enhancement. In response, the government
agreed that Mr. Cash did not meet the requirements for an ACCA enhancement and that
the district court should not have imposed a 360-month sentence on Count 3. But the
government argued that the district court should have sentenced him to a total of
360 months’ imprisonment because he was eligible for a career offender enhancement on
Count 2 under the Sentencing Guidelines.
The district court granted in part and denied in part the § 2255 motion. The
district court agreed with the parties that Mr. Cash was not eligible for the ACCA
enhancement on Count 3 because he did not have three prior qualifying convictions. The
court noted that it had only cited to the Sentencing Guidelines in finding Mr. Cash
eligible for a sentencing enhancement and the court concluded that it should have
imposed a 360-month sentence. It therefore directed that the judgment be amended to
impose a 360-month sentence as follows: 240 months on Count 1 (no change from initial
judgment) and 120 months on Count 3 (decreased from initial judgment) to run
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concurrently; and 120 months on Count 2 (increased from initial judgment), to run
consecutively to the terms imposed on Counts 1 and 3. The district court denied the
remainder of the § 2255 motion and Mr. Cash appealed.
We granted a COA to address whether the district court’s amended judgment was
a resentencing requiring the court to consider recent case law or was a correction of a
technical error. We held that “[t]he effect of the district court’s amended judgment was
essentially a judgment nunc pro tunc to correct a technical error, and not a full-blown
resentencing,” and we affirmed the district court’s ruling on the § 2255 motion. United
States v. Cash, 727 F. App’x 542, 546-47 (10th Cir. 2018). We explained:
[T]he district court recognized upon review of the sentencing transcript that
it had intended to impose a 360-month term of imprisonment based on
Cash’s classification as a career offender under the Sentencing Guidelines.
To reflect its intended sentence, the district court applied the career
offender enhancement to Count 2, and simultaneously reduced Cash’s
sentence on Count 3.
Id. at 546.1
In 2019, Mr. Cash filed another § 2255 motion. He argued that (1) he was entitled
to a resentencing like other defendants who successfully had their ACCA enhancements
removed; (2) removing the ACCA enhancement and adding a career offender
enhancement under the Sentencing Guidelines involved a substantive and significant
modification; and (3) counsel was ineffective for failing to make the correct argument in
seeking a COA to appeal the denial of his first § 2255. Although he recognized that he
1 We declined to grant a COA on Mr. Cash’s claim that he received ineffective
assistance of counsel.
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was filing a “second in time” § 2255 motion, Supp. R. at 43, he asserted that his motion
was not second or successive under Magwood v. Patterson, 561 U.S. 320 (2010), because
the district court “changed [his] sentence and entered an amended judgment following a
partially successful §2255 motion,” Supp. R. at 44. In Magwood, the Supreme Court
held that “where . . . there is a new judgment intervening between the two habeas
petitions, an application challenging the resulting new judgment is not ‘second or
successive’ at all.” Magwood, 561 U.S. at 341-42 (citation and internal quotation marks
omitted).
The district court concluded, however, that the amended judgment did not
constitute a new judgment for purposes of Magwood. Because Mr. Cash filed a second
§ 2255 motion without authorization from this court, the district court dismissed it for
lack of jurisdiction. He now seeks a COA to appeal from that procedural ruling.
II. Discussion
To appeal the district court’s dismissal of his § 2255 motion as second or
successive and unauthorized, Mr. Cash must obtain a COA. See United States v. Harper,
545 F.3d 1230, 1233 (10th Cir. 2008). To obtain a COA where, as here, a district court
has dismissed a filing on procedural grounds, the movant must show both “that jurists of
reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
We need not address the constitutional question if we conclude that reasonable jurists
would not debate the district court’s resolution of the procedural one. Id. at 485.
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A prisoner may not file a second or successive § 2255 motion unless he first
obtains an order from the circuit court authorizing the district court to consider the
motion. 28 U.S.C. § 2255(h); id. § 2244(b)(3)(A). Absent such authorization, a district
court lacks jurisdiction to address the merits of a second or successive § 2255 motion.
In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam).
In Mr. Cash’s appeal from the denial of his first § 2255, we determined that the
district court’s amended judgment was intended to correct a technical error and did not
constitute a resentencing. In our decision in In re Martin, 398 F. App’x 326, 327
(10th Cir. 2010), we distinguished the circumstances in Magwood—where “the state trial
court held new sentencing proceedings and then entered a new judgment at the
conclusion of those proceedings”—from the case at bar where “there were no new
proceedings resulting in a new judgment” and “the amended judgment merely corrected a
clerical error.” Relying on our decision in Mr. Cash’s earlier appeal and our decision in
Martin, the district court concluded that the amended judgment did not constitute a new
judgment under Magwood because there were no new proceedings and the amended
judgment was only a technical correction. Because Mr. Cash had not received
authorization to file a second or successive § 2255 motion, the district court dismissed his
second § 2255 motion for lack of jurisdiction.
In his COA brief, Mr. Cash argues that the amended judgment did not correct
clerical or technical errors, although he concedes that this court found to the contrary in
his earlier appeal. He asserts that this court relied on a “mistaken belief” about the
sentencing proceedings, this error significantly prejudiced him, and prior counsel was
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ineffective for failing to properly present the case. Aplt. COA Br. at 9. He continues to
assert that the modifications that were made to his sentence created a new judgment and
therefore the district court has jurisdiction to entertain his second-in-time § 2255 motion
because it is his first collateral attack on his new judgment.
Mr. Cash sought rehearing of our decision on his earlier appeal, but we denied his
motion. He did not file a petition for a writ of certiorari with the Supreme Court. But he
now suggests that we should disregard our prior decision because it was “based on
misinformation and ineffective assistance of counsel.” Id. at 6. He cites no authority that
would permit us to do so. He also suggests in the alternative that “if this Court finds that
it cannot revisit the prior decision that the modifications addressed clerical errors,
Mr. Cash argues that those types of errors require resentencing nonetheless.” Id.
Mr. Cash has not provided any authority that would permit him to raise a claim of
sentencing error in a second § 2255 motion without first receiving authorization from this
court.
III. Conclusion
Mr. Cash has failed to show that reasonable jurists would debate the correctness of
the district court’s procedural ruling to dismiss his second § 2255 motion for lack of
jurisdiction as an unauthorized second or successive § 2255 motion. Accordingly, we
deny a COA and dismiss this matter.
Entered for the Court
CHRISTOPHER M. WOLPERT, Clerk
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