Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Neihart v. United States

United States District Court, D. New Mexico

June 30, 2017

ROBERT O'DELL NEIHART, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          HONORABLE CARMEN E. GARZA UNITED STATES MAGISTRATE JUDGE.

         THIS MATTER is before the Court on Petitioner Robert O'Dell Neihart's 28 U.S.C. § 2255 Motion to Vacate Sentence (the “Motion”), (CV Doc. 1), filed June 25, 2016; Respondent United States of America's Response to Motion to Vacate Sentence Pursuant to 28 U.S.C. § 2255 (CV Doc. 1) (the “Response”), (Doc. 7), filed November 17, 2016; and Petitioner's Reply re Response to § 2255 Petition, (Doc. 12) (the “Reply”), filed December 23, 2016.[1] United States District Judge William P. Johnson referred this case to Magistrate Judge Carmen E. Garza to perform legal analysis and recommend an ultimate disposition. (CV Doc. 14).

         The Court has reviewed the Motion, the Response, the Reply, and the relevant law. After considering the parties' filings, the record of the case, and relevant law, the Court RECOMMENDS that Petitioner's Motion be DENIED, and that this case be DISMISSED WITH PREJUDICE.

         I. Background

         On October 23, 2012, a grand jury returned a two-count indictment against Petitioner. First, Petitioner was charged with armed bank robbery and putting the life of a person in danger by using a dangerous weapon, in violation of 18 U.S.C. §§ 2113(a) and (d). (CR Doc. 14 at 1). Second, Petitioner was charged with knowingly possessing, carrying, and using a firearm in furtherance of and during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A). (CR Doc. 14 at 1-2). “Crime of violence” under § 924(c) means any felony that (A) “has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” §§ 924(c)(3)(A)-(B). In Petitioner's case, the crime of violence was the armed bank robbery in Count One. (CR Doc. 14 at 2).

         On February 20, 2015, Petitioner pled guilty to both Counts and stipulated to a sentence between 148 months and 161 months. (CR Doc. 140 at 2, 4). As part of the plea agreement, Petitioner agreed to “waive any collateral attack to [his] conviction pursuant to 28 U.S.C. § 2255, except on the issue of counsel's ineffective assistance in negotiating or entering” the plea and waiver. (CR Doc. 140 at 7). Ultimately, on June 22, 2015, Petitioner was sentenced to 28 months for armed bank robbery and 120 months for using a firearm during a crime of violence. (CR Doc. 150).

         Four days after Petitioner was sentenced, the Supreme Court of the United States decided Johnson v. United States, 135 S.Ct. 2551 (2015). In Johnson, the Supreme Court held that the residual clause of the Armed Career Criminal Act (“ACCA”) is unconstitutionally vague. Johnson, 135 S.Ct. at 2557. The residual clause in the ACCA defines “violent felony” in part as any felony that “involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). The Supreme Court held “the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges. Increasing a defendant's sentence under the clause denies due process of law.” Johnson, 135 S.Ct. at 2557.

         On June 25, 2016, Petitioner filed the instant Motion, arguing his conviction for violating § 924(c)(3)(B) violates his right to due process. Although Petitioner titles his Motion as a challenge to his sentence, he actually attacks his conviction for using a firearm in furtherance of a crime of violence. See (CV Doc. 1 at 2) (“Mr. Neihart should not have been convicted of carrying and discharging a firearm during and in relation to a crime of violence.”); (CV Doc. 1 at 11) (“. . . [N]o legal basis exists for a § 924(c) conviction.”). Petitioner argues the holding in Johnson, which technically only applied to § 924(e)(2)(B), also applies to the similarly worded § 924(c)(3)(B). (CV Doc. 1 at 7-11). Petitioner also argues that armed bank robbery is not a crime of violence under § 924(c)(3)(A) because it does not require intent or violent force. (CV Doc. 1 at 3-7). Therefore, Petitioner claims, armed bank robbery is not a crime of violence, and his conviction and sentence must be vacated. (CV Doc. 1 at 11).

         Respondent counters with a number of reasons why Petitioner is not entitled to relief. First, Respondent claims Petitioner is procedurally barred from collaterally attacking his conviction since he had the opportunity to raise his current arguments on direct appeal and failed to do so. (CV Doc. 7 at 3-4). Second, Respondent notes that Petitioner waived his right to collaterally attack his conviction. (CV Doc. 7 at 17-23). Third, Respondent contends Johnson does not affect § 924(c)(3)(B) because of the significant differences between it and § 924(e)(2)(B). (CV Doc. 7 at 11-17). Finally, Respondent argues that armed bank robbery in violation of §§ 2133(a) and (d) is a crime of violence under § 924(c)(3)(A).

         In his Reply, Petitioner reiterates his argument that federal armed bank robbery is not a crime of violence. (CV Doc. 12 at 2-11). Concerning waiver, Petitioner does not argue that he did not waive his right to collaterally attack his conviction; rather, he argues that enforcing the waiver would result in a miscarriage of justice. (CV Doc. 12 at 11-14). Regarding procedural default, Petitioner claims he had cause to not appeal his sentence because Johnson was not decided until after he was actually sentenced. (CV Doc. 12 at 15). Additionally, Petitioner claims he is technically innocent and invokes the “actual innocence” exception to procedural default. (CV Doc. 12 at 16).

         II. Standard of Review Under 28 U.S.C. § 2255

         28 U.S.C. § 2255 provides that prisoners in federal custody may challenge their sentences if: (1) their sentence was imposed in violation of the United States Constitution or federal law; (2) the sentencing court had no jurisdiction to impose the sentence; (3) the sentence exceeded the maximum authorized sentence; or (4) the sentence is otherwise subject to collateral review. § 2255(a). Here, Petitioner claims his sentence was imposed in violation of the United States Constitution. If the Court finds that a sentence infringed Petitioner's constitutional rights and is subject to collateral review, the Court must vacate the sentence and discharge, resentence, or correct the sentence as the Court believes appropriate. § 2255(b).

         III. Analysis

         a. Whether Petitioner waived his right to collaterally ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.