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Home Source documents Court filing — No. 4:20-cr-00100 (Dkt. 320)

Court filing — No. 4:20-cr-00100 (Dkt. 320)

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Case 4:20-cr-00100-CVE Document 320 Filed in USDC ND/OK on 10/10/23 Page 1 of 4




                       UNITED STATES DISTRICT COURT FOR THE
                         NORTHERN DISTRICT OF OKLAHOMA


 UNITED STATES OF AMERICA,                            )
                                                      )
                        Plaintiff,                    )
                                                      )
 v.                                                   )       Case No. 20-CR-0100-01-CVE
                                                      )       (Civil No. 23-CV-0430-CVE-MTS)
 IBANGA ETUK,                                         )
                                                      )
                        Defendant.                    )

                                     OPINION AND ORDER

        Now before the Court is defendant Ibanga Etuk’s motion to vacate, set aside or correct the

 sentence under 28 U.S.C. § 2255 (Dkt. # 316). Defendant argues that a summons for him to appear

 for a pretrial hearing, following a violation of his pretrial release, was defective and therefore

 insufficient to confer jurisdiction over him. He argues that his attorney, G. Steven Stidham, was

 ineffective for failing to raise this “defective summons” argument during pretrial and plea

 proceedings.

        On October 7, 2020, a federal grand jury indicted defendant and others on multiple charges

 of bank fraud and identity theft arising out of their scheme to fraudulently procure Paycheck

 Protection Program (PPP) loans for falsely-created businesses. Dkt. # 46. Defendant was originally

 released on bond pending trial, but his pretrial release was revoked after he continued to engage in

 conduct similar to the charged offenses. Dkt. # 64. Defendant ultimately pled guilty pursuant to a

 plea agreement to one count of bank fraud under 18 U.S.C. § 1344(2) and one count of aggravated

 identity theft under 18 U.S.C. § 1028A, in exchange for dismissal of the remaining charges. Dkt.

 # 104. A magistrate judge accepted defendant’s guilty plea (Dkt. # 100), and this Court sentenced

 him to a term of imprisonment of forty-eight months. Dkt. # 148. Defendant attempted to appeal
Case 4:20-cr-00100-CVE Document 320 Filed in USDC ND/OK on 10/10/23 Page 2 of 4




 on August 16, 2021 (Dkt. # 152), but the Tenth Circuit dismissed that proceeding based on the

 appeal waiver in his plea agreement (Dkt. # 194). After dismissal of his appeal, defendant filed a

 timely motion to vacate, set aside, or correct sentence under § 2255 (Dkt. #209), and his motion was

 denied (Dkt. # 285). Defendant then sought a certificate of appealability (COA), which the Tenth

 Circuit denied (Dkt. # 315) on September 18, 2023.

         Defendant has now filed another § 2255 motion challenging his conviction due to a

 “jurisdictional defect” at the pretrial hearing that occurred on January 25, 2021 (Dkt. # 72).

 However, because defendant has already filed a § 2255 motion (Dkt. # 209), his current motion (Dkt.

 # 316) must be treated as a second or successive § 2255 motion. A second or successive motion

 under § 2255 is permitted only in two circumstances:

         (1) newly discovered evidence that, if proven, and viewed in light of the evidence as a whole,
         would be sufficient to establish by clear and convincing evidence that no reasonable
         factfinder would have found the movant guilty of the offense; or

         (2) a new rule of constitutional law, made retroactive to cases on collateral review by the
         Supreme Court, that was previously unavailable.

 28 U.S.C. § 2255(h). This Court lacks jurisdiction to consider a second or successive § 2255

 motion, because defendant must request permission from the Tenth Circuit to file the motion. See

 28 U.S.C. § 2255(h); United States v. Torres, 282 F.3d 1241, 1246 (10th Cir. 2002).

         The Tenth Circuit has determined that “[w]hen a second or successive § 2254 or § 2255

 claim is filed in the district court without the required authorization from this court, the district court

 may transfer the matter to this court if it determines it is in the interest of justice to do so under §

 1631, or it may dismiss the motion or petition for lack of jurisdiction.” In re Cline, 531 F.3d 1249,

 1252 (10th Cir. 2008). Citing Trujilo v. Williams, 456 F.3d 1210, 1223 n.16 (10th Cir. 2006), the



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 Tenth Circuit stated that “[f]actors considered in deciding whether a transfer is in the interest of

 justice include whether the claims would be time barred if filed anew in the proper forum, whether

 the claims alleged are likely to have merit, and whether the claims were filed in good faith or if, on

 the other hand, it was clear at the time of filing that the court lacked the requisite jurisdiction.”

 Cline, 531 F.3d at 1251. “Where there is no risk that a meritorious successive claim will be lost

 absent a § 1631 transfer, a district court does not abuse its discretion if it concludes it is not in the

 interest of justice to transfer the matter to this court for authorization.” Id. at 1252 (citing Philips

 v. Seiter, 173 F.3d 609, 610 (7th Cir. 1999) (noting that it is a waste of judicial resources to require

 the transfer of frivolous, time-barred cases). The Court has reviewed defendant’s motion (Dkt. #

 316) and finds that there is no risk that a meritorious claim will be lost absent transfer to the Tenth

 Circuit. Defendant has not alleged any newly discovered evidence or new rules of constitutional law

 that would permit the filing of a second or successive § 2255 motion. Moreover, the Tenth Circuit

 reaffirmed in their recent order denying COA that this “district court should not have reached the

 merits . . . of the pretrial detention [hearing] . . . because § 2255 does not authorize any relief that

 would remedy Etuk’s allegedly wrongful pretrial detention.” Dkt. # 315, at 4.

         Even though the Court lacks jurisdiction over defendant’s motion, the Tenth Circuit has

 directed district courts to consider whether a COA should be issued when a second or successive §

 2255 motion is dismissed. See United States v. Harper, 545 F.3d 1230, 1233 (10th Cir. 2008).

 Pursuant to 28 U.S.C. § 2253, a defendant is required to obtain a COA before appealing a final order

 in a proceeding under § 2255. Section 2253(c) instructs that the court may issue a COA “only if the

 applicant has made a substantial showing of the denial of a constitutional right,” and the court

 “indicates which specific issue or issues satisfy [that] showing.” A defendant can satisfy that


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 standard by demonstrating that the issues raised are debatable among jurists, that a court could

 resolve the issues differently, or that the questions deserve further proceedings. Slack v. McDaniel,

 529 U.S. 473 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). After considering the

 record in this case, the Court concludes that a COA should not issue because defendant has not made

 a substantial showing of the denial of a constitutional right. The Court also does not find that the

 issues raised by defendant are debatable among jurists or that the Tenth Circuit would resolve the

 issues differently.

         IT IS THEREFORE ORDERED that defendant’s motion to vacate, set aside, or correct

 the sentence under 28 U.S.C. § 2255 (Dkt. # 316) is dismissed for lack of jurisdiction. A separate

 judgment is entered herewith.

         DATED this 10th day of October, 2023.




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