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United Statesn v. Wiseman

United States District Court, D. New Mexico

February 21, 2018

UNITED STATES OF AMERICA, Respondent,
v.
LONNIE WISEMAN, Petitioner.

          MEMORANDUM OPINION AND ORDER

         This Memorandum Opinion and Order addresses Petitioner Lonnie Ray Wiseman's First Amended Motion to Vacate Judgment Under 28 U.S.C. § 2255 (CV Doc. 10) (First Amended Motion) filed May 16, 2017. The First Amended Motion has been fully briefed.[1] Because Petitioner's First Amended Motion is a “second or successive” motion filed without the requisite authorization of the United States Court of Appeals for the Tenth Circuit, this Court does not have jurisdiction over Petitioner's claims. In the interest of justice, the Court intends to transfer Petitioner's First Amended Motion to the Tenth Circuit Court of Appeals under 28 U.S.C. § 1631 and in accordance with In re Cline, 531 F.3d 1249 (10th Cir. 2008) (per curiam).

         I. BACKGROUND

         A long, convoluted history of Petitioner's efforts to obtain habeas corpus relief preceded Petitioner's filing of his First Amended Motion. The story begins in April of 1997, when a jury convicted Petitioner of six counts of robbery affecting interstate commerce (Counts 1-5 and 7), contrary to 18 U.S.C. § 1951(a), and two counts of use of a firearm during a crime of violence (Counts 6 and 8), contrary to 18 U.S.C. § 924(c)(1). (CR. Docs. 148, 188-89). The penalty for robbery affecting interstate commerce is a maximum of twenty years' imprisonment. 18 U.S.C. § 1951(a). Use of a firearm during a crime of violence merits a mandatory consecutive sentence of 10 years' imprisonment if the weapon is a semi-automatic assault weapon and an additional mandatory 25 years for a second or subsequent firearms conviction to run consecutive to both the sentence for the underlying offense and the 10 year sentence for the first firearms offense. 18 U.S.C. § 924(c)(1); United States v. Brattle, 289 F.3d 661, 667 (10th Cir. 2002) (“§ 924(c)(1) mandates a consecutive sentence for the use of a firearm in the commission of a violent crime[.]”). The Court sentenced Petitioner to 235 months' imprisonment for each of the six counts of robbery (Counts 1-5 and 7) to run concurrently, 120 months on the first firearms offense (Count 6) to run consecutively to the concurrent sentences for the robbery counts, and 240 months for the second firearms offense (Count 8) to run consecutively to all other counts. (CR Docs. 188-189). Petitioner's total term of federal imprisonment was 595 months. (CR Docs. 188-189). The Court rendered judgment on Defendant's convictions and sentences on September 9, 1997. (CR. Doc. 188). Petitioner appealed his convictions and sentences which were affirmed by the United States Court of Appeals for the Tenth Circuit on April 5, 1999. See U.S. v. Wiseman, 172 F.3d 1196, 1220 (10th Cir. 1999) (Wiseman I), abrogated by Rosemond v. U.S., __ U.S. __, 134 S.Ct. 1240 (2014).

         On October 2, 2000, Petitioner filed in District Court his first motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255 (D.N.M. First Motion). (CR. Doc. 209). On March 20, 2001, the District Court denied Petitioner's D.N.M. First Motion. (CR Docs. 219-220). Petitioner appealed, and on July 18, 2002 the Tenth Circuit ruled that, because a jury instruction did not support the jury's verdict on Petitioner's first firearm offense under 18 U.S.C. § 924(c)(1) (Count 6), the case should be remanded to the District Court for resentencing as to Count 6. See U.S. v. Wiseman, 297 F.3d 975, 982-83 (10th Cir. 2002) (Wiseman II). On September 16, 2002, without a hearing, the District Court entered an Amended Judgment reducing Petitioner's sentence on Count 6 to 60 months' imprisonment, with a resulting total new sentence of 535 months' imprisonment. (CR Doc. 222).

         During the almost fourteen-year interval from entry of the 2002 Amended Judgment (CR. Doc. 222) to Petitioner's presentment in the Tenth Circuit on June 23, 2016 of his next motion for habeas corpus under § 2255 (COA First Motion), the Supreme Court of the United States issued a line of cases relevant to Petitioner's argument. In 2010 the Supreme Court in Magwood v. Patterson, held that under certain circumstances a petitioner's second-in-time petition under 18 U.S.C. § 2254 challenging his new sentence was not a “second or successive” petition requiring federal appellate court permission to file it. 561 U.S. 320, 341-42 (2010). In 2014 the Supreme Court issued a ruling in Rosemond v. United States, __ U.S., 134 S.Ct. 1240, 1251 (2014) that abrogated Wiseman I. And in 2015, the Supreme Court ruled in Johnson v. United States, __ U.S., 135 S.Ct. 2551, 2563 (2015) that certain language in the Armed Career Criminal Act (ACCA) was void for vagueness.

         The year 2016 marked the advent of a flurry of new § 2255 activity by Petitioner. On June 23, 2016, Petitioner filed an application in the United States Court of Appeals for the Tenth Circuit requesting permission to file a second or successive § 2255 petition based on the ruling in Johnson. See In re Wiseman, COA No. 16-2152. To this application Petitioner attached a copy of his proposed § 2255 motion (COA First Motion). The following day, June 24, 2016, Petitioner filed in District Court a § 2255 motion (D.N.M. Second Motion) that was identical to the COA First Motion that he filed the previous day in the Tenth Circuit. Also on June 24, 2016, the Tenth Circuit entered an Order in COA No. 16-2152 that abated Petitioner's application for authorization to file a second or successive § 2255 motion and with it the attached proposed COA First Motion. (CR Doc. 228).

         Next, on October 20, 2016, Petitioner filed in the Tenth Circuit another application requesting permission to file a second or successive petition under § 2255 with an attached proposed § 2255 motion (COA Second Motion) challenging his firearm convictions (Counts 6 and 8) under the Rosemond case. See In re Wiseman, COA No. 16-2239. On December 29, 2016, in COA No. 16-2239 the Tenth Circuit denied as a second or successive § 2255 motion Petitioner's application to file the COA Second Motion, holding that Rosemond did not create a new rule of constitutional law and that the United States Supreme Court had not made it retroactively applicable to cases on collateral review.

         Then on February 10, 2017, Petitioner filed in the Tenth Circuit COA No. 16-2152 an unopposed motion to transfer his COA First Motion to the District Court, arguing under Magwood that the COA First Motion was not a second or successive § 2255 motion requiring federal appellate permission to file. On February 23, 2017, the Tenth Circuit lifted the Order that had abated COA No. 16-2152 and granted Petitioner's motion to transfer the COA First Motion to the District Court, explicitly expressing no opinion regarding Petitioner's Magwood argument. (CR Doc. 233).

         On May 15, 2017, Petitioner filed in District Court an Unopposed Motion to Amend Motion to Vacate Judgment Under 28 U.S.C. § 2255 and to Exceed Page Limit requesting leave to file his First Amended Motion.[2] (CV Doc. 8). On May 16, 2017, the District Court entered an Order (CV Doc. 9) allowing Petitioner to file his First Amended Motion (CV Doc. 10) in which he argued that his convictions on Counts 6 and 8 should be vacated based on both Rosemond and Johnson. In addition, Petitioner contends in the First Amended Motion that under Weekes v. Fleming, 301 F.3d 1175 (10th Cir. 2002) he should receive certain credit against his federal sentence. The United States asks the Court to dismiss Petitioner's entire First Amended Motion as an unauthorized second or successive § 2255 motion. In addition, the United States contends that all but Petitioner's Johnson claim are time-barred, and maintains that regardless Petitioner is not eligible for relief under Johnson because Petitioner's predicate offense, Hobbs Act robbery, is a crime of violence under both the elements clause and the residual clause of 18 U.S.C. § 924(c)(3). (CV Doc. 13).

         II. DISCUSSION

         The threshold issue the Court must decide is whether Petitioner's First Amended Motion is “second or successive” under 28 U.S.C. § 2255(h). The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) places restrictions on the ability of a petitioner, held pursuant to a federal sentence, to file a second or successive petition for writ of habeas corpus by limiting the grounds for a second petition and requiring the petitioner to obtain authorization from the Court of Appeals before filing it. See 28 U.S.C. § 2255(h). The term “second or successive” is a habeas “term of art, ” Magwood, 561 U.S. at 332, and “does not simply refer to every § 2255 motion filed second in time to a previous § 2255 motion, ” In re Weathersby, 717 F.3d 1108, 1110 (10th Cir. 2013). Absent authorization from the Court of Appeals, a district court lacks jurisdiction to address the merits of a second or successive § 2255 motion. In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008).

         A. Petitioner's First Amended Motion is an Unauthorized Second or Successive Motion

         The parties do not dispute that Petitioner Wiseman first filed a motion to vacate or amend his sentence under 28 U.S.C. § 2255 (D.N.M. First Motion) in 2000, and that Petitioner's present First Amended Motion is second in time to that D.N.M. First Motion. But Petitioner claims that, according to the Supreme Court's decision in Magwood, the First Amended Motion is not “second or successive” at all because it is his first collateral motion attacking the Amended Judgment the District Court entered in 2002. (CV Doc. 18 at 2-4). The Government distinguishes Petitioner's case from Magwood and contends that the Amended Judgment that rendered the new sentence does not constitute a new judgment because it was not the result of a complete and new assessment of the evidence, and it left undisturbed seven of the eight counts on which Petitioner was convicted. (CV Doc. 13 at 6-7).

         In Magwood the petitioner was found guilty of murder and sentenced to death in Alabama state court. 561 U.S. at 324. Following an unsuccessful direct appeal, the petitioner filed a federal habeas petition under 28 U.S.C. § 2254.[3]Id. at 325-26. The federal district court upheld the petitioner's conviction, but vacated his death sentence and remanded to the state court for a new sentencing hearing. Id. at 326. Following a full resentencing hearing, including a new evidentiary review, the state trial court again imposed the death penalty. Id. The petitioner then filed in the federal district court a second § 2254 petition challenging his new death sentence. Id. at 328. The federal district court again conditionally granted the writ, but the Court of Appeals for the Eleventh Circuit ...


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