- 1 - 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

UNITED STATES OF AMERICA, 

 Plaintiff, 

 Case No. 14-CR-20479 

v. 

 Hon. George Caram Steeh 

JOSEPH TUBBS, 

 Defendant. 

____________________________/ 

ORDER DENYING DEFENDANT’S 

MOTION PURSUANT TO 28 U.S.C. § 1651 

Defendant Joseph Tubbs filed a motion for relief pursuant to the All 

Writs Act, 28 U.S.C. § 1651, which has been fully briefed. For the reasons 

explained below, Defendant’s motion is denied. 

Defendant pleaded guilty to possessing and distributing child 

pornography in 2014. The court sentenced him to 324 months in prison, 

below the guideline range of 360 to 480 months. Defendant did not appeal 

his sentence. In 2016, Defendant filed a motion to vacate his sentence 

pursuant to 28 U.S.C. § 2255, alleging ineffective assistance of counsel, 

prosecutorial misconduct, and that he received a disproportionately harsh 

sentence. The court denied Defendant’s motion and the Court of Appeals 

for the Sixth Circuit denied his application for a certificate of appealability. 
- 2 - 

 In 2017, Defendant sought permission from the Sixth Circuit to file a 

second or successive motion to vacate pursuant to § 2255. Defendant 

alleged that he received an unreasonable sentence because the court 

erred in applying sentence enhancements under U.S.S.G. §§ 2G2.2 and 

4B1.5(b) and in calculating his criminal history category. Finding that 

Defendant did not make the required showing for filing a second or 

successive petition under § 2255, the Sixth Circuit denied Defendant’s 

motion on October 23, 2017. 

 On January 31, 2018, Defendant filed the instant motion. As in his 

motion before the Sixth Circuit, Defendant argues that the court erred in 

applying sentence enhancements under U.S.S.G. §§ 2G2.2 and 4B1.5(b) 

based upon uncharged conduct and without proper fact finding. Defendant 

acknowledges that his motion to file a second § 2255 motion was denied. 

Defendant ostensibly seeks relief pursuant to 28 U.S.C. § 16511

, leaving it 

“up to this court to properly construe the motion.” Doc. 40 at 1. 

 Defendant misunderstands the Sixth Circuit’s decision denying his 

application to file a second § 2255 motion. The Sixth Circuit did not deny 

 

1 The statute provides: “The Supreme Court and all courts established by Act of 

Congress may issue all writs necessary or appropriate in aid of their respective 

jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C.A. § 1651. 
- 3 - 

his application because he relied upon the wrong statute or procedure, but 

because his claims of error do not meet the requirements of 28 U.S.C. § 

2255(h). Thus, Defendant may not file a second § 2255 motion. In 

addition, he may not attempt to raise the same issues by relabeling his 

claims for relief. In other words, Defendant may not attack his sentence by 

seeking a writ under § 1651 when his claims would otherwise be 

cognizable under § 2255. “If, in substance, a claim falls within the scope of 

§ 2255(a), it should be treated as such regardless of any ‘inventive 

captioning’ by the prisoner.” Pilla v. United States, 668 F.3d 368, 372 (6th 

Cir. 2012). 

Defendant’s motion falls within the scope of § 2255(a), because he 

claims his “sentence was imposed in violation of the Constitution or laws of 

the United States . . . or that the sentence was in excess of the maximum 

authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 

2255(a). Defendant may not simply recharacterize his claims and seek 

relief under § 1651. See, e.g., Melton v. United States, 359 F.3d 855, 857 

(7th Cir. 2004) (“Prisoners cannot avoid the AEDPA’s rules by inventive 

captioning.”); United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005) 

(“[A] writ of audita querela may not be granted when relief is cognizable 

under § 2255.”); United States v. Rhines, 640 F.3d 69, 72 (3rd Cir. 2011) (a 
- 4 - 

petitioner “may not resort to a writ of error coram nobis simply because he 

cannot meet the standards for filing a second or successive § 2255 

motion); Robinson v. United States, 2013 WL 3322365 at *1 (E.D. Mich. 

July 1, 2013) (“A criminal defendant cannot invoke the writ of error coram 

nobis or other such common law writs to pursue a claim that would be 

cognizable in a petition under 28 U.S.C. § 2255, but for the impediments 

raised by this statute itself.”). 

 In substance, Defendant’s motion is an unauthorized second or 

successive motion filed pursuant to § 2255, which the court would ordinarily 

transfer to the Sixth Circuit. See In re Sims, 111 F.3d 45, 47 (6th Cir. 

1997). However, because the Sixth Circuit has already denied Defendant 

permission to file a second or successive § 2255 motion on the grounds 

raised here, a transfer is unnecessary. 

 IT IS HEREBY ORDERED that Defendant’s motion pursuant to 28 

U.S.C. § 1651 (Doc. 40) is DENIED. 

IT IS SO ORDERED.

Dated: August 21, 2018 

 s/George Caram Steeh 

 GEORGE CARAM STEEH 

 UNITED STATES DISTRICT JUDGE 
- 5 - 

 CERTIFICATE OF SERVICE 

Copies of this Order were served upon attorneys of record on 

August 21, 2018, by electronic and/or ordinary mail and also 

on Joseph Tubbs #50187-039, FCI Fort Dix, 

Federal Correctional Institution, P.O. Box 2000, 

Joint Base Mdl, NJ 08640 

s/Barbara Radke 

Deputy Clerk