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United States v. Thyberg

United States District Court, D. New Mexico

June 12, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MATTHEW THYBERG, Defendant.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          WILLIAM P. LYNCH UNITED STATES MAGISTRATE JUDGE.

         Matthew Thyberg, through appointed counsel, filed a Petition to Correct His Illegal Sentence Pursuant to 28 U.S.C. § 2255. (CV Doc. 1; CR Doc. 113.)[1] He argues that the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), disqualifies the two New Mexico convictions for aggravated assault with a deadly weapon used to enhance his sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B), and entitles him to resentencing. (Doc. 1 at 1.) Thyberg later filed a pro se § 2255 petition (Doc. 5), and through counsel a Motion to Allow Amendment of Petition (Doc. 15), to which the United States filed a response (Doc. 16). Because his claims may be resolved on the record alone, I have not conducted an evidentiary hearing. I recommend the Court deny both § 2255 petitions and the motion to amend.

         Background

         Thyberg pleaded not guilty to an indictment charging him with a single count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). (CR Docs. 2 at 2; 14 at 1.) He proceeded to a jury trial with appointed counsel and was found guilty of being a felon in possession of a firearm on September 17, 2009. (CR Docs. 21-1 at 2; 66 at 1; 70 at 1.)

         The Presentence Report (“PSR”) classified Thyberg as an armed career criminal under 18 U.S.C. § 924(e)(1) using the following three violent felony predicate convictions: (1) aggravated assault with a deadly weapon in violation of NMSA § 30-3-2(A) (1978) in case number CR-96-264; (2) aggravated assault with a deadly weapon in violation of NMSA § 30-3-2(A) and conspiracy to commit 3rd or 4th degree felony[2] in case number CR-2000-158; and (3) residential burglary[3] in case number CR-2003-196. (Doc. 11-1 at 4, 6; Doc. 1 at 5.) Thyberg's total offense level was 33 (Doc. 11-1 at 6); his criminal history category was VI (id. at 19); and his guideline imprisonment range was 235 to 292 months (id.). On January 14, 2010, the Honorable Robert C. Brack sentenced Thyberg to a term of 260 months imprisonment. (CR Doc. 81 at 2.)

         On June 21, 2016, Thyberg, via appointed counsel, filed his § 2255 petition. (Doc. 1.) Two days later, on June 23, 2016, he mailed a pro se § 2255 petition to the Court, which was received on June 27, 2016. (Doc. 5 at 18-19.)

         On July 21, 2016, the United States filed an Unopposed Motion to Stay, stating that “the issue raised by the defendant is presently pending before the Tenth Circuit” in United States v. Maldonado-Palma. (Doc. 9 at 1.) I granted the motion and stayed the case. (Doc. 10.)

         Three months after the stay, on October 25, 2016, the Tenth Circuit issued its decision in Maldonado-Palma, 839 F.3d 1244 (10th Cir. 2016). The United States then filed an Unopposed Motion to Reinstitute § 2255 Proceedings and Set Response Deadline. (Doc. 12.) I granted the motion and set the response deadline. (Doc. 13.)

         On November 29, 2016, Thyberg filed a Motion to Allow Amendment of Petition. (Doc. 15). The motion, “[w]ithout waving the arguments” in the initial petition, “requests that he be permitted to amend his petition for the purposes of including a second argument”-i.e., “whether New Mexico' [sic] burglary statute can be used to enhance a sentence under the Armed Career Criminal Act”-because the “crux” of his operative petition “is the same as that in [Maldonado-Palma], ” which is a decision that “cuts against” his argument. (Id. at 1.) Curiously, the motion contains no discussion of the legal standard for granting a motion to amend a § 2255 petition. (See Id. at 1-2.) The United States filed a response, arguing, among other things, that Tenth Circuit case law forbids amendment in this circumstance. (Doc. 16 at 3-4.)

         Discussion

         I address Thyberg's later filed motions-the pro se § 2255 petition and motion to amend-first because their resolution bears on the resolution of his initial § 2255 petition.

         Thyberg's pro se § 2255 petition is of no effect because it violates D.N.M.LR-Civ. 83.5. The rule states that “[a] party who is represented by an attorney may not personally make any filings, other than a notice of appeal, or represent himself or herself unless otherwise ordered.” D.N.M.LR-Civ. 83.5. Because neither exception applies, the later filed petition should be disregarded.

         As for Thyberg's motion to amend, it must be denied because his counsel failed to attach a copy of the new petition (see Doc. 15), which violates D.N.M.LR-Civ. 15.1, which states that “[a] proposed amendment to a pleading must accompany the motion to amend.”

         Nevertheless, I address the merits of Thyberg's motion to amend because, even if he follows the local rule and resubmits the motion, it should be denied. The inquiry begins with examining the timeline of the Johnson decision relative to the motion to amend and limitation period in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). AEDPA imposes a “1-year period of limitation” on § 2255 petitions that “shall run from the latest of”: (1) the date of final judgment; (2) the date the illegal impediment that prevented the petitioner from filing his petition was removed; (3) the date the Supreme Court recognized a new right “retroactively applicable to cases on collateral review”; or (4) the date additional facts to support the claim “could have been discovered through the exercise of due diligence.” 28 U.S.C. § 2255(f)(1)-(4). Thyberg's petition under Johnson invokes subsection (3). ...


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