USA v. Rodrigez et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
United States of America, 	)
)
Plaintiff, 	) 	ORDER DISMISSING MOTION
)
vs. 	)
) 	Case No. 3:09-cr-029
Dennis Gene Shipton, 	)
)
Defendant. 	)
Before the Court is a pro se “Motion to Arrest Judgment” filed by the Defendant Dennis
Shipton on November 8, 2022. See Doc. No. 429. For the reasons set forth below, the motion is
dismissed.
I. 	BACKGROUND
On October 20, 2010, the Court sentenced Shipton to a term of life imprisonment for
conspiracy to possess with intent to distribute and distribute a controlled substance, in violation of
21 U.S.C. §§ 841 and 846. See Doc. No. 214. Shipton appealed. The Eighth Circuit Court of
Appeals dismissed Shipton’s appeal as untimely. See Doc. No. 228. On October 21, 2011, Shipton
filed a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. See Doc. No. 234.
The Court identified a single issue that required an evidentiary hearing and dismissed the other issues
raised by Shipton. See Doc. No. 254. Following an evidentiary hearing, the Court denied Shipton’s
motion. See Doc. No. 268. Shipton appealed. On August 13, 2013, the Eighth Circuit Court of
Appeals denied Shipton’s application for a certificate of appealability and dismissed his appeal. See
Doc. No. 275.
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On February 21, 2014, Shipton filed a motion to set aside the judgment, which the Court
denied on March 20, 2014. See Doc. No. 282. Shipton then filed a motion for reconsideration. See
Doc. No. 283. The Court denied Shipton’s reconsideration motion and Shipton appealed. See Doc.
Nos. 284 and 285. The Eighth Circuit Court of Appeals summarily affirmed the Court’s judgment.
See Doc. No. 294
In February and March, 2017, Shipton filed a motion to reduce his sentence and a motion for
a re-sentencing hearing. Both motions were denied. See Doc. No. 325. Shipton appealed. See Doc.
No. 328. The Eighth Circuit Court of Appeals summarily affirmed the denial of both motions. See
Doc. No. 330. On July 31, 2017, Shipton filed a motion for relief under Rule 60(b) and 60(d). See
Doc. No. 332. On August 3, 2017, the Court dismissed the motion after finding it was in reality a
successive Section 2255 motion filed without a certificate of appealability. 	See Doc. No. 335.
Shipton has filed several other motions which have been denied by this Court and rejected by the
Eighth Circuit Court of Appeals. See Doc. Nos. 341, 343, 346, 350, 354, 355, 357, 361, 371, 398,
414, 424, and 427. 	Now before the Court Shipton’s “Motion to Arrest Judgment” filed on
November 8, 2022. See Doc. No. 429.
II. 	LEGAL ANALYSIS
The Eighth Circuit Court of Appeals has instructed that when a criminal defendant files a
motion following the dismissal of Section 2255 motions, the first action of the district court should
be a brief inquiry into whether the motion is really a second or successive Section 2255 motion.
Boyd v. United States, 304 F.3d 813, 814 (8th Cir. 2002). Federal inmates may not file a “second
or successive” motion under Section 2255 without pre-approval from the “appropriate court of
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appeals.” 28 U.S.C. § 2255(h); United States v. Lambros, 404 F.3d 1034, 1036-37 (8th Cir. 2005).
If a motion is actually a successive Section 2255 motion, the district court may either dismiss the
motion for failure to obtain a certificate of appealability or transfer the motion to the court of
appeals. 	Id. 	The reason for this requirement is so inmates may not bypass the authorization
requirements of Section 2255 by invoking some other procedure. Id. (internal citations omitted).
In his current motion, Shipton contends the indictment was flawed and the Court lacked
subject matter jurisdiction. See Doc. No. 429. Upon careful review of the motion, the Court finds
the current motion is essentially a second or successive motion under 28 U.S.C. § 2255. As noted
above, the Shipton has previously filed a motion under Section 2255. The record reveals Shipton
has not sought authorization from the Eighth Circuit Court of Appeals to file a second or successive
motion under 28 U.S.C. § 2255. The Court finds that the motion is a second or successive motion
under Section 2255 and is barred by 28 U.S.C. § 2255(h).
III. 	CONCLUSION
After carefully reviewing the entire record and the relevant law, the Court finds that the
Defendant’s motion is in reality a second or successive motion under 28 U.S.C. § 2255, filed without
first obtaining authorization from the Eighth Circuit Court of Appeals as required by 28 U.S.C. §
2255(h). Accordingly, the Court issues the following ORDER:
1) 	The Defendant’s motion (Doc. No. 429) is DISMISSED without prejudice;
2) 	The Court certifies that an appeal from the denial of this motion may not be
taken in forma pauperis because such a appeal would be frivolous and cannot
be taken in good faith. Coppedge v. United States, 369 U.S. 438, 444-45
(1962).
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3) 	Based upon the entire record before the Court, dismissal of the motion is not
debatable, reasonably subject to a different outcome on appeal, or otherwise
deserving of further proceedings. Therefore, a certificate of appealability will
not be issued by this Court. 	Barefoot v. Estelle, 463 U.S. 880, 893 n.4
(1983); Tiedman v. Benson, 122 F.3d 518, 520-22 (8th Cir. 1997). If the
defendant desires further review of his motion he may request issuance of a
certificate of appealability by a circuit judge of the Eighth Circuit Court of
Appeals.
IT IS SO ORDERED.
Dated this 12th day of January, 2023.
/s/ Daniel L. Hovland
Daniel L. Hovland, District Judge
United States District Court
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