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United States v. Yazzie

United States District Court, D. New Mexico

May 9, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JEROME YAZZIE, Defendant. No. CV 16-0704 PJK/WPL

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          WILLIAM P. LYNCH UNITED STATES MAGISTRATE JUDGE

         Jerome Yazzie filed, essentially, two petitions for relief pursuant to 28 U.S.C. § 2255 and Johnson v. United States, 576 U.S. __, 135 S.Ct. 2551 (2015): a petition filed through counsel on June 24, 2016 (CV Doc. 1; CR Doc. 194)[1], and an apparently pro se petition that was docketed on June 30, 2016, but apparently placed in the prison mail system on June 22, 2016 (Doc. 3). After the Supreme Court's decision in Beckles v. United States, __ U.S. __, 137 S.Ct. 886 (2017), the parties agreed that Yazzie's only remaining claim revolves around the term “crime of violence” as used in 18 U.S.C. § 924(c). (Doc. 15.) Due to the parties' stipulation, I will not address any of the other claims Yazzie initially brought. Having reviewed the record and the applicable law, I recommend that the Court deny Yazzie's motion, dismiss this case with prejudice, and grant a Certificate of Appealability.

         After a jury trial, Yazzie was convicted on five counts: Count 1, Aggravated Burglary in violation of 18 U.S.C. § 1153 and NMSA 1978 § 30-16-4(C); Count 2, Robbery in violation of 18 U.S.C. §§ 1153 and 2111; Count 3, Carrying, Using and Possessing a Firearm in Relation to a Crime of Violence in violation of 18 U.S.C. § 924(c), in connection with the aggravated burglary and the robbery; Count 4, Kidnapping in violation of 18 U.S.C. §§ 1153 and 1201(a)(2); and Count 5, Using and Carrying a Firearm During and in Relation to a Crime of Violence in violation of 18 U.S.C. § 924(c), in connection with the kidnapping. (CR Doc. 153 (Amended Judgment).) Yazzie was sentenced to five years for the non § 924(c) counts, ten years for Count 3, and twenty-five years for Count 5, all to be served consecutively. (Id.) Yazzie received ten years for Count 3, pursuant to 18 U.S.C. § 924(c)(1)(A)(iii), because the jury explicitly found “beyond a reasonable doubt that [Yazzie] discharged the firearm while committing [robbery and aggravated burglary.]” (CR Doc. 130.) The jury also found that Yazzie “brandished the firearm while committing [kidnapping.]” (Id.) Yazzie received 25 years for Count 5 pursuant to 18 U.S.C. § 924(c)(1)(C)(i), because it was his second § 924(c) conviction.

         Yazzie timely appealed, arguing that his sentence was incorrectly calculated and that Count 5 should have been considered the first § 924(c) conviction, which would have reduced his sentence by three years. See United States v. Yazzie, 559 F. App'x 667, 667-68 (10th Cir. 2014) (unpublished).

         Discussion

         The United States contends that Yazzie procedurally defaulted on his argument pursuant to 18 U.S.C. § 924(c) because his petition was submitted more than one year after Johnson was decided. Section 2255(f) of Title 28 provides the relevant temporal limitations on filing habeas corpus petitions. A 1-year period of limitations applies, and that time is calculated from the latest of:

(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f). Johnson was decided on June 26, 2015, and Yazzie's pro se petition was stamped as received by the Court on June 30, 2016 (Doc. 195).

         The United States's argument of procedural default fails for two reasons. First, this Court previously determined that Yazzie's pro se motion (Doc. 3) is a “supplement to [Yazzie's] initial § 2255 motion, ” which was filed on June 24, 2016. (Doc. 5.) Even if that determination is not dispositive of the matter, the United States ignored the prison mailbox rule. “[A] federal inmate's initial filing of a motion to vacate his sentence pursuant to 28 U.S.C. § 2255” is “considered timely if given to prison officials for mailing prior to the filing deadline, regardless of when the court itself receives the documents.” Price v. Philpot, 420 F.3d 1158, 1164 (10th Cir. 2005) (citing United States v. Gray, 182 F.3d 762, 764, 765 n.4 (10th Cir. 1999)). On the last page of his petition, Yazzie certifies that he placed the pro se petition in the prison mailing system on June 22, 2015 (Doc. 3 at 12). I recommend that the Court conclude that Yazzie timely raised his claims challenging his convictions under 18 U.S.C. § 924(c).

         Yazzie contends that he should be resentenced because the residual clause of § 924(c) is unconstitutionally vague as applied and because his predicate offenses-aggravated burglary, robbery, and kidnapping-are not categorically crimes of violence. (Doc. 17.) The United States disagrees.

         Section 924(c)(1)(A) provides for enhanced penalties when a firearm is used “during and in relation to any crime of violence or drug trafficking crime.” A “crime ...


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