United States v. Bell
| Decision Date | 13 May 2021 |
| Docket Number | Case No. 06-CR-00140-GKF,Case No. 20-CV-00343-GKF-JFJ |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. MICHAEL DEWAYNE BELL, Defendant. |
| Court | U.S. District Court — Northern District of Oklahoma |
Before the court are defendant Michael Dewayne Bell's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 [Doc. 383] and the government's Motion to Dismiss Defendant's Successive § 2255 Motion [Doc. 389]. For the reasons set forth below, the government's motion to dismiss is granted. Alternatively, Mr. Bell's motion is denied.
On August 10, 2006, a grand jury returned an indictment charging Mr. Bell with three counts in relation to a February 28, 2006 armed robbery of an Arvest Bank in Tulsa, Oklahoma: (1) aggravated bank robbery in violation of 18 U.S.C. § 2113(a) and (d); (2) using, brandishing, and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii); and (3) possession of a firearm after a felony conviction in violation of 18 U.S.C. §§ 922(g)(1). [Doc. 2]. The case was assigned to then-U.S. District Judge Dale H. Cook.
On February 5, 2007, a grand jury returned a four-count superseding indictment, which included Mark Edward Brown as a co-defendant on Counts One and Two and added Count Four, which charged Brown with possessing a firearm after a felony conviction in violation of § 922(g)(1). [Doc. 43]. On April 26, 2007, Mr. Brown pled guilty to Count 1 of the Superseding Indictment. [Doc. 112].
On April 27, 2007, the government filed a Criminal Information notifying Mr. Bell of its intent to enhance his sentence pursuant to 18 U.S.C § 3559(c)(1) based on two prior Oklahoma state court convictions: (1) Robbery By Force After Former Conviction of Two Felonies and Robbery with Firearms After Former Conviction of Two Felonies in Pottawatomie County Case No. CF-94-191, and (2) Robbery by Force or Fear After Former Conviction of Two Felonies in Seminole County Case No. CF-94-143. [Doc. 117].
The charges against Mr. Bell proceeded to trial from April 30, 2007 to May 2, 2007. [Docs. 121 to 126]. Mr. Bell appeared pro se, but the court appointed attorney Michael McGuire as stand-by counsel to assist upon Mr. Bell's request. At the close of the government's evidence, the court granted Mr. Bell's motion for judgment of acquittal as to Count Three—the possession of a firearm after a felony conviction—but permitted Counts One and Two to proceed to the jury. [Doc. 126]. On May 2, 2007, a jury found Mr. Bell guilty of Count One, aggravated bank robbery in violation of 18 U.S.C. § 2133(a) and (d), and Count Two, using, brandishing, and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). [Doc. 128].
Mr. Bell subsequently filed a pro se motion for judgment of acquittal or new trial [Doc. 132], which Judge Cook denied. [Doc. 150]. On July 30, 2007, Judge Cook sentenced Mr. Bell to life imprisonment pursuant to the "three strikes" provision of 18 U.S.C. 3559. [Doc. 154; Doc. 155]. Mr. Bell appealed [Doc. 158], arguing, in part, that his prior Oklahoma state convictions did not qualify as "violent felonies" and therefore did not trigger a mandatory life sentence under 18 U.S.C. § 3559(c)(1). The Tenth Circuit Court of Appeals affirmed the conviction and sentence, concluding, in part, that "the district court properly determined Bell was previously convicted of at least two prior violent felonies." [Doc. 185, p. 11]. The court specifically rejected Mr. Bell's argument that, because his terms of imprisonment for the state robbery convictions ranconcurrently, that those convictions should be treated as a single violent felony. [Id. at pp. 11-12]. The U.S. Supreme Court denied Mr. Bell's petition for writ of certiorari on March 30, 2009. [Doc. 188].
Mr. Bell subsequently filed a second motion for new trial and the case was randomly reassigned to the undersigned. [Doc. 189; Doc. 190]. On January 11, 2010, this court denied Mr. Bell's second motion for new trial. [Doc. 199]. Mr. Bell appealed the decision, but the appeal was dismissed as untimely. [Doc. 229].
In 2010, Mr. Bell filed his first § 2255 motion, as well as several supplements to that motion [Docs. 205, 206, 207, 208, 209, 212, 213, 219, 223, 230, and 232], based on ineffective assistance of counsel. This court denied the § 2255 motion, as well as related requests for discovery and an evidentiary hearing. [Doc. 260; Doc. 262; Doc. 264]. Mr. Bell appealed, but the Tenth Circuit dismissed the appeal because Bell failed to make a "substantial showing of the denial of a constitutional right." [Doc. 283].
In October 2012, Mr. Bell filed a document titled "Motion to Leave to Amend § 2255 by pursuant to F. R. Civ. P. 15(c)." [Doc. 315]. The court dismissed the motion for lack of jurisdiction, reasoning the relief sought demonstrated the motion was a consecutive § 2255 petition filed without prior permission from the Tenth Circuit. [Doc. 316]. Mr. Bell appealed the dismissal, [Doc. 317], but the Tenth Circuit denied a certificate of appealability and dismissed the appeal. [Doc. 327].
In 2015, Mr. Bell filed another consecutive § 2255 motion without first seeking permission from the Tenth Circuit. [Doc. 359]. The court denied the motion, as well as a certificate of appealability. [Doc. 361]. Mr. Bell appealed the denial and requested that the Tenth Circuitauthorize a successive § 2255 motion based on Johnson v. United States, 135 S. Ct. 2551 (2015). The Tenth Circuit denied authorization. [Doc. 375].
On May 20, 2016, Mr. Bell again requested permission from the Tenth Circuit to file a successive § 2255 motion. [Doc. 383; Remark dated May 20, 2016]. Mr. Bell subsequently filed a "Motion to Leave to File Supplement to Second or Successive 28 U.S.C. § 2255 Filed with the Tenth Circuit Court of Appeals in Relationship to a Johnson Claim," which the Tenth Circuit treated as a supplement to the § 2255 motion. In re Michael Bell, No. 16-5055 (10th Cir. June 23, 2016), Doc. 010109644195. In the supplement, Mr. Bell argued that his two prior convictions for Robbery by Force and Fear (in Pottawatomie County Case No. CR-94-191 and Seminole County Case No. CF-94-143) could only be considered predicate "crimes of violence" for purposes of § 3559's "three strikes" provision under the residual clause, which Mr. Bell claims was "determined to be void for vagueness" in Johnson. [Id. at p. 5].
On June 24, 2016, the Tenth Circuit abated the matter pending further order of that court. In re Michael Bell, No. 16-5055 (10th Cir. June 24, 2016), Doc. 01019645361. During the abatement, Mr. Bell filed several additional supplements to his § 2255 motion, including filings on June 27, 2016, August 29, 2016, April 13, 2017, and April 23, 2018. On May 4, 2018, Mr. Bell filed a "Letter of Notice" incorporating into his motion the U.S. Supreme Court's decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018). Mr. Bell against supplemented his § 2255 motion on June 4, 2018 and July 2, 2018.
On September 16, 2019, Mr. Bell filed a motion to supplement the § 2255 motion to reference the U.S. Supreme Court's decision in United States v. Davis, 139 S. Ct. 2319 (2019), which the Tenth Circuit granted. In re Michael Bell, No. 16-5055 (10th Cir. Sept. 16, 2019), Doc.010110228873. Mr. Bell again referred to Davis in a supplement dated June 25, 2020. In re Michael Bell, No. 16-5055 (10th Cir. June 25, 2020), Doc. 010110366571.
On July 13, 2020, the Tenth Circuit lifted the abatement and granted Mr. Bell permission to file a successive § 2255 motion challenging his conviction and sentence under Davis. [Doc. 382]. The Tenth Circuit then transferred the § 2255 motion and supplements to this court for determination.
In response to the motion, the government filed the instant Motion to Dismiss Defendant's Successive § 2255 Motion. [Doc. 389]. Mr. Bell filed a reply in support of his petition, as well as supplement to the reply. [Doc. 390; Doc. 392]. Additionally, Mr. Bell filed the following motions related to the § 2255 motion: (1) Motion Requesting Evidentiary Hearing under 28 U.S.C. § 2255, Rule 8 [Doc. 393]; (2) Motion for Appointment of Counsel pursuant to 18 U.S.C. § 3006A [Doc. 394]; (3) Motion Requesting 28 U.S.C. § 2255, Rule 7, Expansion of Record [Doc. 395]; (4) Motion for Writ [Doc. 396]; and (5) Motion for Judicial Estoppel [Doc. 399].
A federal prisoner may seek "to vacate, set aside[,] or correct the sentence" if the sentence was imposed in violation of the Constitution or federal law. 28 U.S.C. § 2255(a). "A movant attempting to file a second or successive § 2255 motion must pass two gates." United States v. Copeland, 921 F.3d 1233, 1239 (10th Cir. 2019). "The first is obtaining authorization from the circuit court to file the motion, which requires only 'a prima facie showing to the court of appeals that the motion satisfies the requirements of § 2255(h), defined as a sufficient showing of possible merit to warrant a fuller exploration by the district court.'" Id. (quoting United States v. Murphy, 887 F.3d 1064, 1068 (10th Cir. 2018)); see also 28 U.S.C. § 2255(h). The second gate is adetermination by the district court that the motion does, in fact, satisfy the requirements of § 2255(h). Copeland, 921 F.3d at 1239.
To satisfy the requirements of § 2255(h), Mr. Bell's motion must rely on either "newly discovered evidence" or "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 case turns on the latter requirement. "A motion 'contains' a new rule of constitutional law, as required by § 2255(h), if the claim for which authorization is sought 'relies on' the new rule." Copeland, 921 F.3d at 1238-39 (quoting Murphy, 887 F.3d at 1067).
Mr. Bell's § 2255 motion implicates two issues. First, whether the...
To continue reading
Request your trial