United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER ADOPTING MAGISTRATE
JUDGE'S PROPOSED FINDINGS AND RECOMMENDED
VÁZQUEZ UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on United States
Magistrate Judge Carmen E. Garza's Proposed Findings
and Recommended Disposition (the “PFRD”),
(CV Doc. 30), filed June 27, 2017; Petitioner Eric Lamont
Johnson's Objections to Magistrate PF&RD
(the “Objections”), (CV Doc. 32), filed July 10,
2017; Petitioner's Writ of Mandamus (the
“Petition”), (CV Doc. 34), filed June 30, 2017;
and Petitioner's Motion to Supplement (the
“Supplement”), (CV Doc. 35), filed July 10,
2017. In the PFRD, Judge Garza construed
Petitioner's Motion to Amend (the
“Motion”), (CV Doc. 26), filed May 1, 2017, as a
motion to reconsider under Fed.R.Civ.P. Rule 59(e) and
recommended denying the Motion. (CV Doc. 30 at 2-4).
parties were notified that written objections to the PFRD
were due within 14 days. (CV Doc. 30 at 4). Petitioner
responded by filing his Objections, the Writ, and the
Supplement. Respondent did not object or respond to any of
Petitioner's filings. After a de novo review of
the record and the PFRD, the Court will adopt the Magistrate
Judge's PFRD, overrule Petitioner's Objections, and
deny Petitioner's Motion.
October 21, 2004, Petitioner pled guilty to possessing a
firearm during and in relation to a drug trafficking crime in
violation of 18 U.S.C. § 924(c)(1)(A). (CR Doc. 144).
Petitioner qualified as a career offender under the United
States Sentencing Guidelines (“U.S.S.G.” or
“Guidelines”) based on prior convictions for
crimes of violence. (CR Doc. 235 at 3). Specifically, the
Court found Petitioner's convictions for voluntary
manslaughter and being a prisoner in possession of a weapon
qualified as crimes of violence under the residual clause in
Guidelines § 4B1.2(a)(2), which defined a crime of
violence as any crime that “involves conduct that
presents a serious potential risk of physical injury to
another.” (CR Doc. 235 at 3); U.S.S.G. §
4B1.2(a)(2) (2008). Because of Petitioner's career
offender status, his Guideline sentence range was 360 months
to life imprisonment. (CR Doc. 246 at 7, 10, 29, 32-33).
Ultimately, Petitioner received a 180 month sentence. (CR
Doc. 246 at 37, 40).
9, 2016, Petitioner filed a Motion Under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody (the “Motion under §
2255”), (CV Doc. 1), arguing he was unconstitutionally
sentenced following the Supreme Court of the United
States' ruling in Johnson v. United States, 135
S.Ct. 2551 (2015). (CV Doc. 9 at 3-5). In Johnson,
the Supreme Court held that the residual clause in the Armed
Career Criminal Act (“ACCA”) was
unconstitutionally vague and may not be used to increase a
defendant's sentence. 135 S.Ct. at 2557. Petitioner
argued that, under Johnson, the residual clause in
the Guidelines was also unconstitutionally vague; therefore,
he argued, his sentence is unconstitutional. (CV Doc. 9 at
March 6, 2017, the Supreme Court of the United States decided
Beckles v. United States, 137 S.Ct. 886 (2017),
holding that the Guidelines are not subject to vagueness
challenges and that the residual clause in § 4B1.2 is
not unconstitutionally vague. 137 S.Ct. at 891-92.
Specifically, the Court reasoned that “[b]ecause they
merely guide the district courts' discretion, the
Guidelines are not amenable to a vagueness challenge.”
Id. at 894. Thus, Johnson is inapplicable
to the Guidelines. Id. at 892 n.2. Accordingly, on
April 27, 2017, the Court denied Petitioner's Motion
under § 2255. (CV Doc. 24).
days after the Court entered judgment, Petitioner filed the
instant Motion. (CV Doc. 26). In the Motion, Petitioner
states he wishes to amend the pleadings to reflect the
Supreme Court's ruling in Mathis v. United
States, 136 S.Ct. 2243 (2016). (CV Doc. 26 at 2).
Petitioner argues that because the ACCA and Guidelines should
be interpreted similarly, his convictions for being a
prisoner in possession of a weapon are no longer crimes of
violence. Id. at 2-3. Petitioner “continues to
contend that he is actually innocent of the career offender
application.” Id. at 2.
Petitioner did not seek to amend his Motion under §
2255, and given how soon after judgment Petitioner filed the
Motion, the Magistrate Judge construed Petitioner's
Motion as a motion for reconsideration under Fed.R.Civ.P.
Rule 59(e). (CV Doc. 30 at 2-3). The Magistrate Judge
explained that motions to reconsider are typically granted on
three grounds: (1) to account for an intervening change in
controlling law; (2) to consider new, previously unavailable
evidence; and (3) to correct clear error or manifest
injustice. (CV Doc. 30 at 3). The Magistrate Judge found the
Mathis decision did not fit into any of these three
categories; therefore she recommended Petitioner's Motion
be denied. Id. at 4.
days after the PFRD was filed, Petitioner filed a petition
for a writ of mandamus. (CV Doc. 34). In the Petition,
Petitioner argues his prior conviction for voluntary
manslaughter in California is not a crime of violence. (CV
Doc. 34 at 2); see (CR Doc. 246 at 12; 32-33).
Petitioner references his Motion and states he has no
alternative for relief except a writ of mandamus. (CV Doc. 34
then timely objected to the PFRD. (CV Doc. 32). Petitioner
reiterated that his underlying claim is based on
Johnson and Welch v. United States, 136
S.Ct. 1257 (2016), in which the Supreme Court held
Johnson applied retroactively to cases on collateral
review. (CV Doc. 32 at 2). Further, Petitioner argues his
case is distinguishable from Beckles because in
Beckles, the defendant's crime of violence was
listed as a crime of violence in the Guidelines'
commentary. Id. at 2-3; see Beckles, 137
S.Ct. at 891. Petitioner again claims that the analysis of
whether a crime is a crime of violence is the same under the
ACCA and Guidelines; therefore he is not a career offender.
(CV Doc. 5-7).
Petitioner filed a Motion to Supplement his Motion.
(CV Doc. 35 at 1). In this Supplement, Petitioner represents
that his Motion alleges ineffective assistance of counsel
that resulted in him being illegally sentenced as a career
offender, and that he wishes to supplement the Motion with
more authority. Id. at 1. Petitioner argues a
meritorious claim of ineffective assistance of counsel
overcomes a procedural bar. Id. at 2 (citing
U.S. v. Harms, 371 F.3d 1208, 1211 (10th Cir.
2004)). Finally, Petitioner cites Quijada-Aguilar v.
Lynch, 799 F.3d 1303 (9th Cir. 2015), for the
proposition that California voluntary manslaughter is not
categorically a crime of violence. Id. at 3. The
Court considers the Objections, Petition, and Supplement
collectively as Petitioner's objections to the Magistrate
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 ...