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United States v. Lemos

United States District Court, D. New Mexico

April 17, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
DANIEL JESUS LEMOS, Defendant/Movant. Cr. No. 06-1436 JAP

          ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

         In this Order the Court considers: (1) Defendant/Movant Daniel Jesus Lemos' (“Defendant”) Amended Emergency Motion to Correct Sentence pursuant to 28 U.S.C. § 2255 (“Section 2255 Motion”) (CR Doc. 70; Doc. 3), filed June 10, 2016; (2) United States Magistrate Judge Kirtan Khalsa's Proposed Findings and Recommended Disposition (“PFRD”) (Doc. 22), filed January 23, 2017; (3) Plaintiff/Respondent the United States of America's (“Government”) Objections to Magistrate Judge's Proposed Findings and Recommended Disposition (“Objections”) (Doc. 23), filed February 6, 2017; and (4) Defendant/Movant's Response to Government's Objection (sic) to Magistrate Judge's Proposed Findings and Recommended Disposition (Doc. 24) (“Response to Objections”).

         I. Factual Background and Procedural History

         The Court has reviewed the record in this case de novo, and concurs with the Magistrate Judge's description of its factual background and procedural history. (Doc. 22 at 2-5.) The Court will not repeat that description here, but rather will highlight certain salient points in the Government's Objections and in the Response to Objections.

         On June 28, 2006, a federal grand jury charged Defendant by indictment with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and with possessing a firearm with an obliterated, removed, changed, or altered serial number in violation of 18 U.S.C. § 922(k). (CR Doc. 1.) Defendant pled guilty to the indictment without a plea agreement on April 3, 2008. (CR Doc. 46.)

         On June 9, 2008, the United States Probation Office (“USPO”) disclosed its Presentence Investigation Report (“PSR”) finding that Defendant's sentence should be enhanced under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), because Defendant had previously been convicted of three violent felonies. (Doc. 16-1 at 1, 9.) The PSR identified the three prior convictions as: (1) a 1994 aggravated vehicle burglary conviction; (2) a 1997 residential burglary conviction; and, (3) a 2002 aggravated commercial burglary conviction, all under New Mexico law. (Id. at 9-14.) The section of the PSR detailing Defendant's criminal history also listed a 2002 New Mexico commercial burglary conviction. (Id. at 12.) However, the USPO did not rely on the 2002 commercial burglary conviction to support the enhancement of Defendant's sentence under the ACCA. (Id. at 9.) At a hearing on February 2, 2010, the Court adopted the findings in the PSR and sentenced Defendant to fifteen years' imprisonment, the minimum sentence the ACCA mandated. (CR Doc. 66.) The Court entered a judgment of conviction on February 22, 2010. (CR Doc. 67.)

         On May 13, 2016, Defendant, acting pro se, filed a Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, less than one year after the United States Supreme Court struck down a portion of the ACCA in Johnson v. United States, __ U.S. __, 135 S.Ct. 2551 (2015). (Doc. 1.) On June 16, 2016, Defendant's counsel filed the amended Section 2255 Motion presently before the Court.[1] (CR Doc. 70; Doc. 3.) The parties then filed a number of briefs addressing the issues raised in Defendant's motion: (1) Defendant's objections to the USPO's June 28, 2016 memorandum regarding the effect of Johnson on his sentence; (2) the Government's response to the Section 2255 Motion; (3) the Government's response to Defendant's objections to the USPO's memorandum; (4) Defendant's reply in support of his Section 2255 Motion; (5) Defendant's “Supplement” to the Section 2255 Motion; (6) the Government's response to Defendant's “Supplement”; and, (7) Defendant's “Notice of Supplemental Authority.” (Docs. 12-15, 19-21.)

         In his Section 2255 Motion, Defendant asks the Court to vacate his sentence and resentence him without enhancement under the ACCA. (Doc. 3 at 1.) According to Defendant, this may result in his immediate release from federal custody. (Id.) Defendant argues that enhancement of his sentence is no longer proper because, after Johnson, his 1994 aggravated vehicle burglary conviction is no longer a violent felony under the ACCA. (Id. at 4-6.) Defendant also argues that the Government cannot now substitute his 2002 commercial burglary conviction for his 1994 aggravated vehicle burglary conviction to justify the enhancement of his sentence, because the Government waived its right to do so, and because commercial burglary is no longer a violent felony under the ACCA. (Doc. 12 at 4-11; Doc. 19 at 2-3; Doc. 21 at 1.)

         Before entry of the Magistrate Judge's PFRD, the Government did not dispute that, after Johnson, Defendant's 1994 aggravated vehicle burglary conviction is no longer a violent felony under the ACCA. (See Docs. 13, 14, 20.) Instead, the Government argued that Defendant's three other convictions: 1997 residential burglary, 2002 aggravated commercial burglary, and 2002 commercial burglary are violent felonies; and, consequently, Defendant still has three qualifying convictions under the ACCA.[2] (Doc. 13 at 2-16.) The Government denied that it waived its right to substitute Defendant's 2002 commercial burglary conviction for his 1994 aggravated vehicle burglary conviction to justify the enhancement of his sentence. (Doc. 14 at 1-3.)

         For the first time in its Objections to the Magistrate Judge's PFRD, the Government argues that the Court should deny Defendant's Section 2255 Motion because it is untimely. (Doc. 23 at 2-6.) The Government also objects to the Magistrate Judge's proposed finding that, post-Johnson, New Mexico non-residential burglary is no longer a violent felony under the ACCA. (Id. at 7-9.) The Court has considered the parties' submissions and has conducted a de novo review of the record, including the record in the underlying criminal case. Based on its review, the Court finds that the Government's Objections should be overruled, the Magistrate Judge's PFRD should be adopted, and Defendant's Section 2255 Motion should be granted.

         II. Analysis

         District courts may refer dispositive motions to a magistrate judge for a recommended disposition under 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72. 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b)(1). “Within 14 days after being served with a copy of the [magistrate judge's] recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations.” Fed.R.Civ.P. 72(b)(2); 28 U.S.C. § 636(b)(1). When resolving objections to a magistrate judge's proposal, “[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3); 28 U.S.C. § 636(b)(1).

         “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996). However, “[i]ssues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.” ClearOne Commc'ns, Inc. v. Biamp Sys., 653 F.3d 1163, 1185 (10th Cir. 2011) (quoting Marshall v. Chater, 75 F.3d 1421, 1426-27 (10th Cir. 1996)); Abdulhaseeb v. Calbone, 600 F.3d 1301, 1310 (10th Cir. 2010) (same); see also United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001) (“In this circuit, theories raised for the first time in objections to the magistrate judge's report are deemed waived.”).

         A. The Government waived its argument that Defendant's Section 2255 Motion is untimely.

         As noted above, the Government in its Objections argues that the Court should deny Defendant's Section 2255 Motion because it is untimely. (Doc. 23 at 2-6.) In general, a defendant must file a motion under 28 U.S.C. § 2255 within one year of the date the judgment of conviction becomes final. 28 U.S.C. § 2255(f)(1). Here, the Court entered a judgment of conviction on February 22, 2010; thus, absent exceptional circumstances, Defendant's Section 2255 motion was due by March 8, 2011. (CR Doc. 67); see United States v. Prows, 448 F.3d 1223, 1227-28 (10th Cir. 2006) (if no appeal is filed, a judgment of conviction becomes final when the fourteen-day deadline for filing an appeal has expired). However, as the Government concedes, if the right asserted in the motion “has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review, ” then the one-year limitation period runs from “the date on which the right asserted was initially recognized by the Supreme Court.” 28 U.S.C. § 2255(f)(3).

         In Johnson, the Supreme Court newly recognized a right and made it retroactively applicable to cases on collateral review. Welch v. United States, __ U.S. __, 136 S.Ct. 1257, 1264-65 (2016). Specifically, the Supreme Court struck down the ACCA's residual clause as unconstitutionally vague. Johnson, 135 S.Ct. at 2557, 2563. If Defendant's motion asserts the right newly recognized in Johnson, his motion was timely because it was filed within one year after Johnson was decided. In its Objections, however, the Government argues that Defendant's Section 2255 Motion does not assert a newly recognized right under Johnson. The Government characterizes Defendant's Section 2255 Motion as merely asserting a right under Mathis v. United States, __ U.S. __, 136 S.Ct. 2243 (2016) because “all four” of Defendant's prior convictions “were evaluated under the enumerated clause” that Mathis addressed, and not under the residual clause invalidated by Johnson.[3] (Doc. 23 at 3 n.1, 6 n.4.) As the Government observes, Mathis did not newly recognize a right made retroactively applicable to cases on collateral review. (Id. at 3-4.) Thus, according to the Government, Defendant's motion was due by February 3, 2011, [4] and was untimely filed on June 10, 2016.[5] (Id. at 2.)

         However, “[i]ssues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.” ClearOne Commc'ns, Inc., 653 F.3d at 1185; Marshall, 75 F.3d at 1426-27; Abdulhaseeb, 600 F.3d at 1310; Garfinkle, 261 F.3d at 1031. Since the Government has raised the issue of the timeliness of Defendant's Section 2255 Motion for the first time in its Objections to the Magistrate Judge's PFRD, the Government has waived the issue. (Doc. 23 at 4 n.2; Doc. 24 at 3.)

         The Government argues that it did not deliberately waive the procedural bar and that it raised the timeliness issue “because of the intervening 10th Circuit opinion in [Taylor].” The Government refers to the unpublished decision in United States v. Taylor, __ F. App'x __, 2016 WL 7093905 (10th Cir. Dec. 6, 2016), which was issued about one month before the Magistrate Judge entered her PFRD. (Doc. 23 at 4 n.2.) In Taylor, the Tenth Circuit upheld the denial of a § 2255 motion on the basis of untimeliness. Fifteen years after his conviction and sentencing, the defendant argued that his previous convictions under Oklahoma law for second degree burglary should not have been considered as violent felonies under the enumerated clause of the ACCA. Id. at *1. The Tenth Circuit agreed with the district court's determination that the defendant was asserting a right under Mathis, and was not asserting a Johnson violation because he was not originally sentenced under the residual clause of the ACCA. Id. at *4 (“Mr. Taylor had one year from that date [final judgment] to assert a habeas challenge to his sentence.”). “Because Mathis did not announce a new rule, Mr. Taylor cannot rely on it in a § 2255 petition filed nearly fifteen years after the judgment in his criminal case became final. Mr. Taylor's petition is time-barred.” Id. The Government likens this case to the situation in Taylor arguing that Defendant is actually ...


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