United States District Court, D. New Mexico
ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED
FINDINGS AND RECOMMENDED DISPOSITION
MATTER is before the Court on the Magistrate
Judge's Proposed Findings and Recommended
Disposition (the “PFRD”), (CV Doc. 15),
filed June 30, 2017; Petitioner's Objection Pursuant
to Title 28 U.S.C. § 636(b)(1) (the
“Objections”), (CV Doc. 16), filed July 17, 2017;
the “Forensic Psychological Diminished Capacity
Evaluation” Petitioner filed as an appendix to his
Objections (the “Appendix”), (CV Doc. 18), filed
July 20, 2017; Petitioner's counsel's Motion to
Withdraw (the “Motion to Withdraw”), (CV
Doc. 17), filed July 18, 2017; Respondent United States of
America's Sealed Response to Petitioner's
Objections to Proposed Findings and Recommended
Disposition under 18 U.S.C. § 2255 to Vacate, Set
Aside, or Correct a Sentence by a Person in Federal
Custody (the “Response”), (CV Doc. 19),
filed July 28, 2017; Petitioner's Denial to
Government's Crossclaims (Doc. 172) Styled as An
Sealed Response to Petitioner's Objections to
M.R.R. [sic] (the “Reply”), (CV Doc. 21),
filed August 14, 2017; and Petitioner's first and second
Motion to Resubmit an Incorporated Memorandum of
Law Supporting the Currently Pending § 2255,
Petition [sic] (the “Motions to Resubmit”),
(CV Docs. 20, 22), filed August 21, 2017.
30, 2017, the Magistrate Judge recommended that
Petitioner‘s 28 U.S.C. § 2255 Motion to Vacate
Sentence (the “Motion”), (CV Doc. 1), be
denied and that this case be dismissed with prejudice because
Petitioner waived his right to collaterally attack his
sentence. (CV Doc. 15 at 4-10). The parties were notified
that objections were due within fourteen days. Id.
at 10. Although Petitioner was represented and his counsel
did not object to the PFRD, on July 17, 2017, Petitioner
filed his Objections pro se. In his Objections,
Petitioner claims the plea waiver is unenforceable because
his counsel deliberately misled him about the possibility of
an insanity defense at trial. (CV Doc. 16 at 1-3). Based on
Petitioner's claim of ineffective assistance of counsel,
Petitioner's counsel filed a Motion to Withdraw. (CV Doc.
Response to Petitioner's Objections, Respondent argues
the Court should liberally construe Petitioner's
Objections as an amendment to his original Motion and decide
the merits of Petitioner's ineffective assistance claim.
(CV Doc. 19 at 1-2). Petitioner replied to the Response;
however the Reply is not properly before the Court because
the rules of procedure do not allow for replies to objections
to PFRDs. See 28 U.S.C. § 636(b); Fed.R.Civ.P.
72(b) (allowing objections and responses, but not replies).
Finally, Petitioner filed Motions to Resubmit, in which he
reiterates his conflict with counsel and asks the Court to
provide him with copies of counsel's drafts of the §
2255 Motion so that he may review and possibly amend them.
(CV Doc. 20, 22 at 1-2).
de novo review of the record and the PFRD, the
Court: (1) overrules Petitioner's Objections; (2) grants
Petitioner's counsel's Motion to Withdraw; (3) denies
Petitioner's Motions to Resubmit; and (4) adopts the
Magistrate Judge's PFRD and (5) dismisses this case with
October 23, 2012, Petitioner was charged with: (1) 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); and (2) 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). 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).
25, 2016, Petitioner requested review of his conviction
pursuant to the Supreme Court's decision in Johnson
v. United States, 135 S.Ct. 2551 (2015). (CV Doc. 1).
The Court referred this matter to Judge Garza to conduct
analysis and to make findings of fact and a recommended
disposition. (CV Doc. 14). The Magistrate Judge concluded
that the appellate waiver in Petitioner's plea agreement
is enforceable, and recommended that Petitioner's Motion
be denied. (CV Doc. 15 at 10).
The PFRD and Petitioner's Objections
Pursuant to Rule 8 of the Rules Governing Section 2255
Proceedings for the United States District Courts, a district
judge may, under 28 U.S.C. § 636(b), refer a pretrial
dispositive motion to a magistrate judge for proposed
findings of fact and recommendations for disposition. Within
fourteen days of being served, a party may file objections to
this recommendation. Rule 8(b) of the Rules Governing Section
2255 Proceedings for the United States District Courts. A
party may respond to another party's objections within
fourteen days of being served with a copy; the rule does not
provide for a reply. Fed.R.Civ.P. 72(b).
resolving objections to a magistrate judge's
recommendation, the district judge must make a de
novo determination regarding any part of the
recommendation to which a party has properly objected. 28
U.S.C. § 636(b)(1)(C). Filing objections that address
the primary issues in the case “advances the interests
that underlie the Magistrate's Act, including judicial
efficiency.” United States v. One Parcel of Real
Prop., With Bldgs., Appurtenances, Improvements, &
Contents, 73 F.3d 1057, 1059 (10th Cir. 1996).
Objections must be timely and specific to preserve an issue
for de novo review by the district court or
for appellate review. Id. at 1060. Additionally,
issues “raised for the first time in objections to the
magistrate judge's recommendation are deemed
waived.” Marshall v. Chater, 75 F.3d 1421,
1426 (10th Cir. 1996); see also U.S. v. Garfinkle,
261 F.3d 1030, 1031 (10th Cir. 2001) (“In this circuit,
theories raised for the first time in objections to the
magistrate judge's report are deemed waived.”).
case, Petitioner contends that his conviction for violating
§ 924(c)(3)(B) violates his right to due process. (CV
Doc. 1 at 2). 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). Id. 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. Id. at 3-7. Therefore, Petitioner
claims, armed bank robbery is not a crime of violence and his
conviction and sentence must be vacated. Id. at 11.
considering the evidence in the record and the relevant law,
the Magistrate Judge determined that Petitioner's
collateral attack falls within the scope of his appellate
waiver, Petitioner knowingly and voluntarily waived his right
to collateral review, and that enforcing the waiver would not
result in a miscarriage of justice. (CV Doc. 15 at 4-10).
Petitioner argued that the waiver was unlawful because it
would result in Petitioner serving an unconstitutional
sentence. (CV Doc. 12 at 11-14). The Magistrate Judge
explained that, under United States v.
Frazier-LeFear, 665 Fed.Appx. 727 (10th Cir. 2016)
(unpublished), the waiver itself must be unlawful, not some
other aspect of the proceeding, including the sentence. (CV
Doc. 15 at 8). Accordingly, the Magistrate Judge recommended
that Petitioner's Motion be denied. Id. at 10.