United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
HONORABLE CARMEN E. GARZA UNITED STATES MAGISTRATE JUDGE.
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. 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).
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.
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).
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.
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.
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).
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).
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).
Standard of Review Under 28 U.S.C. § 2255
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).
Whether Petitioner waived his right to collaterally ...