United States District Court, D. New Mexico
Kimberly A. Brawley, Assistant United States Attorney (Damon
P. Martinez, United States Attorney), Albuquerque, New
Mexico, for Plaintiff.
M. Davidson, JustAppeals.net, The Appellate Law Office of
Scott M. Davidson, Ph.D. Esq., Albuquerque, New Mexico, for
ORDER ADOPTING PROPOSED FINDINGS AND RECOMMENDED
DISPOSITION OF THE MAGISTRATE JUDGE
MATTER comes on for consideration of Vernon Lee Baker's
Objections to the Magistrate Judge's Report and
Recommendation filed December 15, 2016 (Doc. 11,
1:16-cv-00715-PJK-GBW). In accordance with 28 U.S.C. §
636(b)(1)(B), this case was referred to Magistrate Judge
Gregory B. Wormuth who recommended that Mr. Baker's
Motion to Vacate, Set Aside, or Correct Sentence under 28
U.S.C. § 2255 be denied and the case be dismissed with
prejudice. (Doc. 9, 1:16-cv-00715-PJK-GBW; Doc. 163,
Mr. Baker argues that his prior New Mexico convictions for
Armed Robbery and Aggravated Battery (Deadly Weapon) do not
constitute “violent felonies” under the ACCA
because (1) robbery does not require a sufficient degree of
force or the force may be directed against an object rather
than a person, and (2) aggravated battery (deadly weapon)
could be committed by an unlawful touching of one person with
a weapon while intending to injure another. Mr. Baker also
argues that the magistrate judge improperly relied upon cases
involving the Sentencing Guidelines to interpret the
ACCA's requirements. The court has made a de novo
determination of all matters to which objection is made. 28
U.S.C. § 636(b)(1).
response to Mr. Baker's objections, the government argues
for the first time that Mr. Baker's § 2255 motion is
time-barred because his sentence enhancement for a
“violent felony” was pursuant to the ACCA's
“elements clause, ” 18 U.S.C. §
924(e)(2)(B)(I), not the residual clause, 18 U.S.C. §
924(e)(2)(B)(ii). According to the government, Mr.
Baker's challenge is really based upon Mathis v.
United States, 136 S.Ct. 2243 (2016), which is not
retroactive and therefore his § 2255 motion is untimely.
(Doc. 13 at 4, 1:16-cv-00715-PJK-GBW; Doc. 165 at 4,
1:08-cr-01680-PJK-1); see also United States v.
Taylor, No. 16-6223, 2016 WL 7093905, at *4 (10th Cir.
Dec. 6, 2016).
court need not resolve the government's argument which at
a minimum would require a response from Mr. Baker. Suffice it
to say that based upon Tenth Circuit and New Mexico law, it
is clear that both offenses challenged here (Armed Robbery
and Aggravated Battery (Deadly Weapon)) are “violent
felonies” under the ACCA as amplified by Johnson v.
United States, 559 U.S. 133, 140 (2010). See United
States v. Harris, 844 F.3d 1260 (10th Cir. 2017);
United States v. Lujan, 9 F.3d 890, 891-92 (10th
Cir. 1993); State v. Bernal, 146 P.3d 289, 296 (N.M.
2006) (approving Lujan's conclusion that robbery
is a violent felony because it involves the use or threatened
use of force); United States v. Maldonado-Palma, 839
F.3d 1244, 1250 (10th Cir. 2016) (aggravated assault-deadly
weapon is a crime of violence), cert. denied, 2017
WL 388153 (U.S. Feb. 27, 2017); United States v. Ramon
Silva, 608 F.3d 663, 671 (10th Cir. 2016) (ACCA and USSG
precedents may be consulted in this inquiry).
court must issue or deny a COA when it enters a final order
adverse to the applicant. A COA should issue “only if
the applicant has made a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2).
An applicant can satisfy this standard by demonstrating that
the issues raised are debatable among jurists, a court could
resolve the issues differently, or the questions deserve
further proceedings. Slack v. McDaniel, 529 U.S.
473, 483-84 (2000). After considering the issues raised and
their disposition, the court will deny a COA.
THEREFORE, IT IS ORDERED, ADJUDGED and DECREED that:
Defendant Baker's Objections to the Magistrate
Judge's Report and Recommendation filed December 15, 2016
(Doc. 11, 1:16-cv-00715-PJK-GBW) are overruled.
Proposed Findings and Recommended Disposition of the
Magistrate Judge (Doc. 9, 1:16-cv-00715-PJK-GBW; Doc. 163,
1:08-cr-01680-PJK-1) are adopted.
Baker's Motion to Vacate, Set Aside, or Correct Sentence
under 28 U.S.C. § 2255, (Doc. 1, 1:16-cv-00715-PJK-GBW;
Doc. 156, 1:08-cr-01680-PJK-1) is denied.
certificate of appealability is denied.
separate judgment shall be entered in the civil case