In re Twitty

(D.C. Nos. 1:22-CV-00393-RBJ &1:19-CR-00344-RBJ-1) (D. Colo.)

Before HOLMES, Chief Judge, McHUGH, and EID, Circuit Judges.

ORDER

Andre J. Twitty, proceeding pro se, moves for authorization to file a second or successive 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence.

Twitty was convicted of stalking (credible threat and repeated communication) in violation of Colo. Rev. Stat. § 18-3-602(1)(b), as assimilated by 18 U.S.C. § 13. His original judgment, entered on March 3, 2020, imposed a sentence of 60 months' imprisonment and three years' supervised release. Twitty began serving his term of supervised release in May 2023, but within months the district court revoked it. On October 19, 2023, the court entered a revocation judgment imposing a sentence of twelve months and one day of imprisonment, with no supervised release to follow.

DISCUSSION

It appears that Twitty seeks to vacate, set aside, or correct his original sentence. But to the extent he is in federal custody, it would be pursuant to the October 2023 judgment revoking his supervised release. It thus is unclear whether Twitty seeks to file a § 2255 motion challenging the original sentence, the revocation sentence, or both. To the extent Twitty seeks authorization to file a second or successive § 2255 motion regarding his original sentence, we deny authorization for failure to meet the statutory requirements. To the extent he seeks authorization to file a § 2255 motion regarding his revocation sentence, we deny the motion as unnecessary.

It appears that Twitty may no longer be "in custody" under either the March 2020 original judgment or the October 2023 revocation judgment, as required to bring a § 2255 motion. But a movant's custody status is not part of our authorization inquiry.

Original Sentence

Twitty must obtain this court's authorization before filing another § 2255 motion to vacate, set aside, or correct his original sentence. See § 2255(h). For authorization, he must make a prima facie showing that his claims rely on:

(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 [him] 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.

Id.; 28 U.S.C. § 2244(b)(3)(C) (prima facie showing).

Twitty generally reargues issues he previously has raised, including the applicability of United States v. Harris, 10 F.4th 1005 (10th Cir. 2021), and he asserts that his legal and factual innocence entitles him to review of his issues on the merits. These arguments do not satisfy the requirements of § 2255(h). To the extent Twitty invokes Kemp v. United States, 596 U.S. 528 (2022), and Counterman v. Colorado, 600 U.S. 66 (2023), he fails to show that the Supreme Court has made those decisions retroactive to cases on collateral review. See Tyler v. Cain, 533 U.S. 656, 662-63 (2001) ("[T]he [statutory] requirement is satisfied only if this Court has held that the new rule is retroactively applicable to cases on collateral review.... The new rule becomes retroactive, not by the decisions of the lower court or by the combined action of the Supreme Court and the lower courts, but simply by the action of the Supreme Court."). For these reasons, we deny authorization to file a second or successive § 2255 motion to vacate, set aside, or correct Twitty's original sentence.

In 2023, we warned Twitty that any "future motion for authorization concerning this same underlying conviction or sentence in which he presents arguments in favor of authorization substantially similar to those presented here" would be subject to summary dismissal. In re Twitty, No. 23-1076, at 2 (10th Cir. Apr. 5, 2023) (unpublished order). In light of the possibility that Twitty seeks to challenge the revocation sentence instead of or in addition to the original sentence, we have chosen not to act on this warning with regard to this motion for authorization. But again we caution him that if he files any future motion for authorization concerning this same conviction or sentence in which he presents arguments in favor of authorization substantially similar to those presented here, the Clerk shall dismiss the motion without further notice.

Revocation Sentence

For purposes of second-or-successive authorization, the revocation judgment entered on October 19, 2023, is an intervening judgment. See Magwood v. Patterson, 561 U.S. 320, 341-42 (2010) (holding, in case under 28 U.S.C. § 2254, where "a new judgment interven[es] between the two habeas petitions, an application challenging the resulting new judgment is not second or successive at all" (citation and internal quotation marks omitted)); United States v. McGaughey, 670 F.3d 1149, 1159 n.7 (10th Cir. 2012) (applying Magwood in the § 2255 context). Since the revocation judgment, Twitty has filed one motion in the district court, which the court handled as a motion under United States Sentencing Guidelines Amendment 821. We therefore do not count that motion as a § 2255 motion. Because Twitty has not yet filed a first § 2255 motion to vacate, set aside, or correct the sentence entered on October 19, 2023, he does not require this court's authorization to file a second or successive § 2255 motion concerning that sentence.

Therefore, to the extent the motion for authorization seeks authorization for a § 2255 motion challenging the revocation sentence, we deny it as unnecessary.

CONCLUSION

We deny authorization to file a second or successive § 2255 motion challenging Twitty's original sentence. As to the revocation sentence, we deny any motion for authorization as unnecessary.