United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
WILLIAM P. LYNCH UNITED STATES MAGISTRATE JUDGE
matter is before me on Phillip Contreras's Motion Under
28 U.S.C. § 2255 and Johnson v. United States,
135 S.Ct. 2551 (2015), to vacate, set aside, or correct his
sentence (CV Docs. 1, 10, 18; CR Docs. 42, 50,
Contreras argues that several of his previous felony
convictions no longer qualify as “violent”
felonies under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e)(1). The United
States contends that Contreras waived his right to
collaterally attack his conviction and sentence and is
therefore not entitled to relief. I recommend that the Court
deny Contreras's motion.
pleaded guilty, pursuant to a plea agreement, to a two-count
information on August 7, 2013. (CR Doc. 24.) Count 1 charged
him with possession with intent to distribute five grams and
more of methamphetamine and aiding and abetting, in violation
of 18 U.S.C. § 841(a)(1) and (b)(1)(B) and 18 U.S.C.
§ 2. (Id.) Count 2 charged him with being a
felon in possession of a firearm and ammunition in violation
18 U.S.C. §§ 922(g)(a) and 924(a)(2).
of his plea agreement, Contreras waived certain rights on
appeal. Contreras's “Waiver of Appeal Rights”
. . . In addition, the defendant agrees to waive any
collateral attack to this conviction and the sentence
imposed, including any fine, pursuant to 28 U.S.C.
§§ 2241, 2255, or any other extraordinary writ,
except on the issue of counsel's ineffective assistance
in negotiating or entering this plea or this waiver.
(CR Doc. 27 at 7.)
Presentence Investigation Report (“PSR”) detailed
at least three violent felonies. Because Contreras pleaded to
a controlled substance offense and to being a felon in
possession of a firearm, he qualified as both an armed career
criminal under the ACCA and a career offender under the
calculated Contreras's criminal history category as a
level VI and his offense level at 31, after a three point
reduction for acceptance of responsibility. At the sentencing
hearing, the United States moved for a one level reduction,
leaving Contreras with a criminal history category VI,
offense level 30, and Guidelines' range of 168-210
months' incarceration. The Court imposed a sentence of
168 months as to each count, with the sentences to run
concurrently. (CR Doc. 37.)
to 18 U.S.C. § 924(a)(2), a person convicted of being a
felon in possession of a firearm in violation of §
922(g) may be fined, imprisoned for not more than ten years,
or both, unless that person is deemed an armed career
criminal pursuant to § 924(e)(1), in which that person
shall be sentenced to at least fifteen years'
argues that he no longer qualifies as an Armed Career
Criminal because several of his prior felony convictions no
longer qualify as violent felonies for purposes of the ACCA.
Thus, contends Contreras, his sentence must be amended. The
United States raises a threshold issue to which Contreras did
not respond: whether this challenge falls within the scope of
his waiver of appeal rights, and whether that waiver is
must conduct a hearing on a § 2255 motion
“[u]nless the motion and the files and records of the
case conclusively show that the prisoner is entitled to no
relief.” 28 U.S.C. § 2255(b); see also United
States v. Lopez, 100 F.3d 113, 119 (10th Cir. 1996).
Under this standard, “the petitioner bears the burden
of alleging facts which, if proved, would entitle him to
relief.” Hatch v. Oklahoma, 58 F.3d 1447, 1457
(10th Cir. 1995) (quotation omitted), overruled on other
grounds by Daniels v. United States, 254 F.3d 1180, 1188
n.1 (10th Cir. 2001) (en banc). Accordingly, if the prisoner
alleges facts which, if believed, cannot be grounds for
relief, there is no need for a hearing. Id.
Additionally, the petitioner's “allegations must be
specific and particularized; conclusory allegations will not
suffice to warrant a hearing.” Id. (citation
and internal punctuation omitted). If the claims relate to
occurrences in the courtroom or evidence in the record, then
the Court need not conduct a hearing. Machibroda v.
United States, 368 U.S. 487, 494-95 (1962).
the record alone establishes that Contreras's § 2255
motion should be denied, I did not hold an ...