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Neihart v. United States

United States District Court, D. New Mexico

August 28, 2017

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

          ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

         THIS MATTER is before the Court on the Magistrate Judge's Proposed Findings and Recommended Disposition (the “PFRD”), (CV Doc. 15), [1] 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.

         On June 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.[2] 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. 17).

         In its 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).

         After a 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 prejudice.

         I. Background

         On 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).

         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). 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).

         On June 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).

         II. 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).[3]

         When 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.”).

         In this 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.

         After 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.

          a. The ...


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