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United States v. Dallas

United States District Court, D. New Mexico

December 4, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
MICHAEL DALLAS, Defendant/Movant.

          MEMORANDUM OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

         THIS MATTER comes before the Court on Magistrate Judge Laura Fashing's Proposed Findings and Recommended Disposition (Doc. 79[1]) (Report) and movant Michael Dallas's objections to the Report (Doc. 84). Having reviewed the record in this case, the Court overrules Dallas's objections and adopts the magistrate judge's recommendation to deny Dallas's motion.

         I. Standard of Review

         When a party files timely written objections to the magistrate judge's recommendation, the district court generally will conduct a de novo review and “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(C); see also Fed. R. Civ. P. 72(b)(3). To preserve an issue for de novo review, “a party's objections to the magistrate judge's report and recommendation must be both timely and specific.” United States v. One Parcel of Real Prop., With Buildings, Appurtenances, Improvements, & Contents, Known as: 2121 E. 30th St., Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir. 1996).

         II. Discussion

         The magistrate judge recommended that the Court deny Dallas's motion because Dallas's prior felony aggravated battery convictions under New Mexico law are violent felonies under the elements clause of the ACCA. See Doc. 79 at 6-10. Because his prior convictions satisfy the elements clause, Dallas is not entitled to relief under Johnson v. United States, 135 S.Ct. 2551 (2015). In Johnson, the Supreme Court invalidated only the residual clause of the ACCA, not the elements clause. See Doc. 79 at 3-10; Johnson, 135 S.Ct. at 2563.

         In his objections, Dallas argues that the magistrate judge erred in finding that the felony aggravated battery statute under which he was convicted requires more than merely touching another person. Doc. 84 at 3-8. He also argues that the magistrate judge erred in concluding that the felony aggravated battery statute's requirement that an unlawful touching that inflicts great bodily harm (or could inflict such harm) necessarily requires physical force. See Id. at 8- 11. He further argues that the magistrate judge erred in concluding that United States v. Barraza-Ramos, 550 F.3d 1246 (10th Cir. 2008) does not control this case, see Doc. 84 at 12-14, and that the magistrate judge erred in applying the modified categorical approach, see Id. at 14- 15. The Court will address each of Dallas's arguments in turn.

         A. The Magistrate Judge Correctly Determined that Felony Aggravated Battery in New Mexico Requires More than a Mere Touch.

         Dallas argues that “[c]ommon law battery is an element of aggravated battery and the mere touch needed to complete the offense is not the violent physical force described in Johnson 1 [Johnson v United States, 559 U.S. 133 (2010)[2] as necessary to meet the force clause definition.” Doc. 84 at 3. Common law battery, however, is a misdemeanor crime distinct from the aggravated battery statute at issue here, which is a felony. Compare N.M. Stat. Ann. § 30-3-4 (codifying common law battery and stating “[w]hoever commits battery is guilty of a petty misdemeanor”) with N.M. Stat. Ann. §§ 30-3-5(A), (C) (describing felony aggravated battery). One “key distinction between the two battery statutes is the mens rea requirement.” State v. Skippings, 2011-NMSC-021, ¶ 14, 150 N.M. 216, 258 P.3d 1008, 1012. “Under the aggravated battery statute, it must be established that the perpetrator possessed the specific intent to injure that person or another.” Id. Felony aggravated battery also requires proof either that the perpetrator touched the victim with a deadly weapon, or that the perpetrator touched the victim in a way that caused great bodily harm or in a way that likely would result in death or great bodily harm. N.M. Stat. Ann. § 30-3-5(C). Dallas's argument ignores these additional elements of felony aggravated battery. When viewed all together, the elements of felony aggravated battery require “violent force, ” not merely a touch.

         The elements of felony aggravated battery involving great bodily harm are as follows:

1. The defendant touched or applied force to the victim.
2. The defendant intended to injure the victim or another.
3. The defendant either caused great bodily harm to the victim or acted in a way that would likely result in death or great bodily harm to the victim.

N.M. R. Ann., Crim. UJI 14-323. “Great bodily harm means an injury to a person which creates a high probability of death or results in serious disfigurement or results in loss of any member or organ of the body or results in permanent or prolonged impairment of the use of any member or organ of the body.” N.M. R. Ann., Crim. UJI 14-131 (brackets and footnote omitted).

         The elements of felony aggravated battery with a deadly weapon are as follows:

1. The defendant touched or applied force to the victim with a ...

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