The Tenth Circuit published its opinion in In re Weathersby on Tuesday, May 14, 2013.
Keith V. Weathersby filed a motion for authorization to file a second or successive motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255. Weathersby was convicted of two federal drug offenses in March 2002 and sentenced to 292 months in prison. The Tenth Circuit affirmed his conviction and sentence on direct appeal. He then filed a § 2255 motion for relief that the district court dismissed as untimely. After filing other motions and appeals, Weathersby alleged he successfully attacked six state court convictions that were used in calculating his federal sentence and sought to file another § 2255 motion challenging his federal sentence.
The Antiterrorism and Effective Death Penalty Act (AEDPA) limits second or successive motions under § 2255, requires that a defendant obtain circuit-court authorization before filing a second or successive motion, and limits the grounds for authorization. The Tenth Circuit found persuasive the reasoning of the Eleventh Circuit in a similar case and held that if the state court did not vacate Weathersby’s convictions until after his first § 2255 proceeding was concluded, this motion would not be a second motion. Given that the basis for challenging his federal sentence did not exist until the state court vacated the sentences, his proposed § 2255 claim did not exist at the time of the first § 2255 motion. The court dismissed the motion for authorization as unnecessary.