Opinion
No. 03-10151-1-JTM
10-21-2020
UNITED STATES OF AMERICA, Plaintiff, v. MAURICE FRANKLIN, JR., Defendant.
MEMORANDUM AND ORDER
Defendant Maurice Franklin has moved to vacate his sentence under 28 U.S.C. § 2255. Franklin was convicted in 2005 of three counts of interference with commerce by threats or violence, four counts of brandishing or discharging a firearm during a crime of violence, two counts of felon in possession of ammunition, and one count of carjacking (in violation, respectively, of 18 U.S.C. § 1951, 924(c), 922(g)(1), and 2119), and was sentenced to 1242 months imprisonment. (Dkt. 144). The defendant's convictions and resulting sentence were affirmed on appeal, United States v. Franklin, 195 Fed.Appx. 730 (10th Cir. 2006), and defendant's subsequent collateral attacks on his conviction have been denied. (Dkt. 189, 203). Defendant's sentence was subsequently reduced to a total term of 630 months. (Dkt. 224).
Franklin argues in his motion that his sentence is unlawful in light of Rehaif v. United States, 139 S.Ct. 2191 Syl. (2019), which held that "the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm." This court, however, has no jurisdiction to grant the relief sought, given Franklin's two prior motions (both denied by the court) for relief under § 2255. (Dkt. 186, and 197). Under 28 U.S.C. § 2255(h), this court is without jurisdiction to entertain the merits of a second and successive motion, unless and until the Tenth Circuit grants the proper authorization. In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008).
Nor can the court transfer the matter to the Tenth Circuit for such authorization. Such a transfer may take place in the court's discretion if there is a reasonable prospect that the authorization would be granted. The Tenth Circuit, however, has not determined that Rehaif is to be retroactively applied as new rule of constitutional law, and the strong weight of authority is that Rehaif was a question of statutory interpretation, and thus is not accorded retroactive application. See Mata v. United States, No. 20-1875, 2020 WL 4515780, at *2 (2d Cir. Aug. 6, 2020) (non-retroactivity is "the uniform view of other courts of appeals that have addressed this question").This court expressly adopted this conclusion in two separate decisions. See United States v. Gulley, No. 15-10055-1-JTM, 2020 WL 4815947 (D. Kan. Aug. 19, 2020); United States v. Grigsby, No. 12-10174-JTM, 2019 WL 3302322, at *1 (D. Kan. July 23, 2019).
IT IS ACCORDINGLY ORDERED this day of October, 2020, that the defendant's Motion to Vacate (Dkt. 225) is hereby dismissed.
J. Thomas Marten
J. Thomas Marten, Judge