Curt Russell Cannamela ( 2023 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 23a0123p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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IN RE: CURT RUSSELL CANNAMELA,
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Movant. > No. 23-5035
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On Motion for Authorization to File a Second
or Successive § 2255 Motion and On Motion for Default Judgment.
United States District Court for the Middle District of Tennessee at Nashville.
Nos. 3:18-cr-00006-1; 3:22-cv-01070—Waverly D. Crenshaw Jr., Chief District Judge.
Decided and Filed: June 12, 2023
Before: SUTTON, Chief Judge; GILMAN and DAVIS, Circuit Judges.
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COUNSEL
ON APPLICATION FOR AUTHORIZATION TO FILE A SECOND OR SUCCESSIVE
§ 2255 MOTION and ON MOTION FOR DEFAULT JUDGMENT: Curt Russell
Cannamela, Forrest City, Arkansas, pro se. ON RESPONSE: Cecil W. VanDevender,
UNITED STATES ATTORNEY’S OFFICE, Nashville, Tennessee, for the Respondent.
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ORDER
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PER CURIAM. Curt Russell Cannamela, a pro se federal prisoner, moves for an order
authorizing the district court to consider a second or successive motion to vacate or correct his
sentence under 28 U.S.C. § 2255. He also moves for default judgment against the government
for its alleged untimeliness in responding to his motion. We deny both motions.
After the district court rejected his plea agreement in 2018, Cannamela pleaded guilty
without a plea agreement in consolidated cases. He admitted guilt to two counts of attempting to
entice or coerce a minor to engage in criminal sexual activity, 18 U.S.C. § 2422(b), attempting to
No. 23-5035 In re Cannamela Page 2
receive child pornography, id. § 2252(a)(2), and attempting to distribute child pornography, id.
The district court sentenced him to 188 months in prison. Cannamela did not appeal.
In 2022, Cannamela filed a pro se motion for resentencing in each case. The district
court construed them as motions to vacate under § 2255, appointed Cannamela counsel, and gave
him an opportunity to file an amended motion to vacate through counsel. Cannamela declined.
The district court ultimately denied the motions.
Cannamela then filed another motion to vacate. The district court determined that it was
second or successive and transferred it to this court. After the transfer, Cannamela filed a motion
seeking authorization from this court to file a second or successive § 2255 motion.
One preliminary point before addressing that request. Castro v. United States teaches
that when a court recharacterizes a pro se litigant’s filing as a § 2255 motion, it must provide
three things: (1) notice of recharacterization, (2) warning of the consequences, and (3) an
opportunity to amend or withdraw the motion. 540 U.S. 375, 383 (2003). Otherwise, the
recharacterized motion does not count toward the bar on second or successive § 2255 motions.
Id.; In re Shelton, 295 F.3d 620, 622 (6th Cir. 2002) (per curiam). Castro applies only to pro se
litigants, however, because its goal was “to help the pro se litigant understand”
recharacterization. Castro, 540 U.S. at 384.
The court here did not run afoul of Castro when it construed Cannamela’s original filings
as § 2255 motions. The court’s order provided Cannamela notice of the recharacterization and
gave him an opportunity to amend his filing. The court, it is true, did not expressly warn
Cannamela of the consequences of recharacterization. The court instead appointed counsel. No
longer pro se, Cannamela moved beyond Castro’s ambit. Equally important, Cannamela had the
opportunity to confer with his counsel “and mak[e] an informed judgment” about the
consequences of proceeding with the motions as recharacterized. Id. (stressing the “practical
importance” of the warnings). Following that opportunity, Cannamela, acting through counsel,
decided to “stand upon his original filing.” R.8 at 1 (M.D. Tenn. No. 3:22-cv-152). The
recharacterized motions thus count for purposes of the bar on second or successive § 2255
motions, which no one here contests.
No. 23-5035 In re Cannamela Page 3
To proceed with today’s motion, Cannamela must clear the gatekeeping hurdles for a
second or successive § 2255 motion. He must show that the motion relies either on “a new rule
of constitutional law” that applies retroactively on collateral review or on “newly discovered
evidence” that suffices “to establish by clear and convincing evidence that no reasonable
factfinder would have found [him] guilty of the offense.” 28 U.S.C. § 2255(h).
Cannamela comes up short. He seeks authorization to claim that (1) the district court
erred by rejecting the plea agreement; (2) the prosecution subsequently failed to honor the terms
of that agreement, and his counsel performed ineffectively by failing to enforce it; and (3) the
court incorrectly stated in its order denying Cannamela’s first habeas petition that it had accepted
the plea agreement and sentenced him to 120 months in prison. As Cannamela acknowledges,
these claims do not rely on a new rule of constitutional law. He instead maintains that they rely
on new evidence, pointing to sentencing transcripts from 2020 that he recently obtained. But
even if the transcripts from Cannamela’s sentencing qualify as newly discovered evidence, they
do not show his innocence or show that no reasonable factfinder would have found him guilty.
See id. § 2255(h)(1); see also Keith v. Bobby, 551 F.3d 555, 557 (6th Cir. 2009).
We therefore DENY both the motion for default judgment and the motion for
authorization to file a second or successive § 2255 motion.
ENTERED BY ORDER OF THE COURT
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Deborah S. Hunt, Clerk