Order — United States v. Phillip C. Montgomery (Western District of Oklahoma, Document 51)

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This Order from the Western District of Oklahoma, Case No. CR-19-31-F, addresses a filing entitled “Affidavit of Truth – Denied Due Process Fifth Amendment,” filed by defendant Phillip C. Montgomery. The court finds that the postconviction filing, which appears to collaterally attack the conviction and sentence, should be dismissed for lack of jurisdiction, and in its discretion declines to recharacterize it as a motion under 28 U.S.C. § 2255. The order states that the time to file a § 2255 motion ran on January 28, 2021, that the filing was made almost three years later, and that Rehaif and Bruen have not been made retroactively available to cases on collateral review. The filing is dismissed, and the order is dated the 12th day of January, 2024.

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              Case 5:19-cr-00031-F Document 51 Filed 01/12/24 Page 1 of 5




              IN THE UNITED STATES DISTRICT COURT FOR THE
                     WESTERN DISTRICT OF OKLAHOMA
    UNITED STATES OF AMERICA,                     )
                                                  )
                         Plaintiff,               )
                                                  )
    -vs-                                          )       Case No. CR-19-31-F
                                                  )
    PHILLIP C. MONTGOMERY,                        )
                                                  )
                         Defendant.               )

                                             ORDER

           The court is in receipt of a filing entitled “Affidavit of Truth – Denied Due
Process Fifth Amendment,” filed by defendant Phillip C. Montgomery. Doc. no. 50.
Upon review, the court finds the postconviction filing should be dismissed for lack
of jurisdiction.
           It appears that defendant seeks to collaterally attack his conviction and
sentence.1 Although defendant briefly mentions 28 U.S.C. § 2255 in his filing, it is
not clear whether defendant actually seeks his relief under § 2255. The court, in its
discretion, declines to recharacterize the filing as a motion to vacate, set aside or
correct sentence under § 2255.
           “With pro se litigants, federal courts will often ignore the labels attached to a
pleading and ‘recharacterize the motion in order to place it within a different legal
category.’” United States v. Edge, 315 Fed. Appx. 92, 95 (10th Cir. 2009) (quoting


1
  Defendant pleaded guilty to Count 2 of the Superseding Indictment, charging him with being a
felon in possession of firearms in violation of 18 U.S.C. § 922(g)(1), the penalty for which is found
at 18 U.S.C. § 924(a)(2). On January 10, 2020, the court sentenced defendant to a term of
imprisonment of 120 months.
          Case 5:19-cr-00031-F Document 51 Filed 01/12/24 Page 2 of 5




Castro v. United States, 540 U.S. 375, 381 (2003)). “However, with § 2255 motions,
peculiar concerns are implicated-namely, a court, by construing a litigant’s motion
‘as a first § 2255 motion . . . may make it significantly more difficult for that litigant
to file another such motion.’” Id. (quoting Castro, 540 U.S. at 382). Consequently,
the Supreme Court has limited the district court’s power to recharacterize various
pleadings into “a litigant’s first § 2255 motion.”          Id. (emphasis in original)
(unpublished decision cited as persuasive pursuant to 10th Cir. R. 32.1(A)). The
district court can only recharacterize a defendant’s filing as a § 2255 motion if it
provides notice of its intent to do so; warns the defendant of the potential
consequences of such a recharacterization; and gives the defendant an opportunity
to either contest the characterization, withdraw the motion, or amend the motion.
See, United States v. Martin, 357 F.3d 1198, 1199 (10th Cir. 2004).
      Upon review of defendant’s filing, however, the court concludes that
recharacterization of the filing as a § 2255 motion and notification of the
recharacterization would not be in the best interest of defendant. A federal prisoner
seeking relief under § 2255 generally must file the motion within one year from the
latest of four dates: (1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental
action in violation of the Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such governmental action; (3) the
date on which the right asserted was initially recognized by the Supreme Court, if
that right has been newly recognized by the Supreme Court and made retroactively
available to cases on collateral review; or (4) the date on which the facts supporting
the claim or claims could have been discovered through the exercise of due
diligence. See, 28 U.S.C. § 2255(f)(1)-(4).




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          Case 5:19-cr-00031-F Document 51 Filed 01/12/24 Page 3 of 5




      The judgment of conviction in this case was entered on January 13, 2020.
Because defendant did not file a direct appeal, his conviction became final on
January 27, 2020. See, United States v. Prows, 448 F.3d 1223, 1227-28 (10th Cir.
2006) (If a defendant does not file an appeal, the criminal conviction becomes final
upon expiration of the time in which to take a direct criminal appeal); Rule
4(b)(1)(A)(i), Fed. R. App. P. (notice of appeal in a criminal case must be filed
within fourteen days after the entry of the judgment). Thus, defendant had through
January 28, 2021 to file any motion under § 2255. See, United States v. Hurst, 322
F.3d 1256, 1261-62 (10th Cir. 2003) (the limitations period under § 2255(f) begins
on the day after the judgment becomes final and ends exactly one year later on the
same day). Defendant’s time to file a § 2255 motion thus ran on January 28, 2021.
Defendant’s filing has been filed almost three years later.
      In his motion, defendant cites several Supreme Court cases, which he claims
supports his filing. Those cases are United States v. Davis, 139 S. Ct. 2319 (2019);
New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022); and
Rehaif v. United States, 139 S. Ct. 2191 (2019). Section 2255(f)(3) allows a federal
prisoner to file a section 2255 motion within one year of a Supreme Court decision
that creates a newly recognizable right made retroactively applicable to cases on
collateral review. However, Rehaif and Bruen have not been made retroactively
available to cases on collateral review. See, United States v. Scuderi, 842 Fed. Appx.
304, 305 (10th Cir. 2021) (addressing Rehaif) (unpublished decision cited as
persuasive pursuant to 10th Cir. R. 32.1(A)); Butler v. United States, Case No. 3:22-
CV-2552-N-BK, 2023 WL 8007120, at *3 (N.D. Texas Oct. 16, 2023) (addressing
Bruen). While Davis has been made retroactively available to cases on collateral
review, see, In re Mullins, 942 F.3d 975, 979 (10th Cir. 2019), defendant’s filing




                                          3
           Case 5:19-cr-00031-F Document 51 Filed 01/12/24 Page 4 of 5




would nonetheless be untimely because it was not filed within one year of the
issuance of decision in Davis on June 24, 2019. See, Dodd v. United States, 545
U.S. 353, 357 (2005) (stating that under § 2255(f)(3), an applicant has one year from
the date was the right was initially recognized by the Supreme Court, not the date
the right was made retroactive).2
       The limitation period in § 2255(f) is subject to equitable tolling in certain
circumstances. See, United States v. Gabaldon, 522 F.3d 1121, 1124 (10th Cir.
2008). To obtain equitable tolling, a federal prisoner must show that he has
diligently pursued his claims and that the failure to timely file was caused by
extraordinary circumstances beyond his control. Id. Defendant has not made any
such showing in his filing.
       Because defendant’s filing does not indicate that he is actually seeking relief
under § 2255, and the filing, as submitted, appears to be untimely, the court declines
to recharacterize defendant’s filing as a motion pursuant to § 2255. Given the
potential consequences of that recharacterization, the court concludes that it is in the
best interest of defendant not to recharacterize his filing as a motion under § 2255,
which would result in his first § 2255 motion.
       As the court is not recharacterizing defendant’s filing as one under § 2255 and
the court has no jurisdiction to consider a collateral attack on a conviction and
sentence not brought under § 2255, the court finds that defendant’s filing should be
dismissed for lack of jurisdiction. See, United States v. Anaya, 772 Fed. Appx. 720,
721 (10th Cir. 2019) (affirming dismissal of motion not recharacterized as a § 2255
motion) (unpublished decision cited as persuasive pursuant to 10th Cir. R. 32.1(A)).


2
 Defendant’s filing also was not filed within one year of the issuance of the Rehaif decision on
June 21, 2019 or the issuance of the Bruen decision on June 23, 2022.



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             Case 5:19-cr-00031-F Document 51 Filed 01/12/24 Page 5 of 5




        Accordingly, the “Affidavit of Truth – Denied Due Process Fifth
Amendment” (doc. no. 50) filed by defendant Phillip C. Montgomery is
DISMISSED for lack of jurisdiction.
        DATED this 12th day of January, 2024.




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