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United States v. Shirley

United States District Court, D. New Mexico

March 21, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
EDDIE SHIRLEY, Defendant/Movant.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER is before the Court under Rule 4(b) of the Rules Governing Section 2255 Proceedings on the Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255 filed by Movant Eddie Shirley on June 22, 2016 (CV Doc. 1; CR Doc. 92). Shirley seeks to vacate and correct his sentence under Johnson v. United States, 578 U.S.__, 135 S.Ct. 2551 (2015). The Court determines that Shirley is not eligible for relief under Johnson and will dismiss the Motion.

         FACTUAL AND LEGAL BACKGROUND

         On December 14, 2012, Shirley was charged with robbery through use of force, violence, and intimidation in Indian Country in violation of 18 U.S.C. § 2111. (CR Doc. 1). He was subsequently indicted on one count of Robbery in Indian Country under § 2111 and one count of Brandishing a Firearm During and in Relation to a Crime of Violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). (CR Doc. 16).

         On October 24, 2005, Shirley entered into a Fed. R. Crim. P. 11(c)(1)(C) Plea Agreement in which he pled guilty to the second count of Brandishing a Firearm During and in Relation to a Crime of Violence in violation of 18 U.S.C. § 924(c) and stipulated to an 84 month sentence. (CR Doc. 49). In the Plea Agreement, Shirley stipulated, as true and correct, that:

“On or about November 30, 2012, in Indian County, in San Juan County, in the District of New Mexico, I, Eddie Shirley, an Indian, with Jane Doe, knowingly used and brandished a firearm during and in relation to a crime of violence, that being robbery, and took by force and violence, and by intimidation, from the person and presence of A.H., T.B., M.S., and L.H., a thing of value, namely money belonging to the Sonic Drive-In Restaurant.”

(Doc. 49, at 3 ¶ 7). Shirley was then sentenced to a term of incarceration of 84 months. (CR Doc. 66).

         Shirley filed his Motion under 28 U.S.C. § 2255 on June 22, 2016. (CV Doc. 1; CR Doc. 92). Shirley contends that Johnson invalidates the residual clause of 18 U.S.C. § 924(c)(3)(B) and that his predicate crime of robbery in Indian Country under 18 U.S.C. § 2111 is not a crime of violence as defined in the element or force clause of § 923(c). (CV Doc. 1 at 6-10; CR Doc. 92 at 6-10).

         APPLICABLE LAW ON JOHNSON V. UNITED STATES AND SECTION 2255 COLLATERAL REVIEW

         Shirley seeks collateral review of his sentence in CR 13-00067 WJ under 28 U.S.C. § 2255. Section 2255 provides:

“A prisoner in custody under a sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). Because Shirley seeks collateral review more than a year after his sentences became final, he relies on a right newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review in Johnson and Welch v. United States, 578 U.S.__, 136 S.Ct. 1257 (2016). See 28 U.S.C. § 2255(f)(3).

         In Johnson, the Supreme Court held that the residual clause of the Armed Career Criminal Act (“ACCA”) is impermissibly vague and imposing an increased sentence under the residual clause of 18 U.S.C. § 924(e)(2)(B) violates the Constitution's guarantee of due process. 135 S.Ct. at 2562-2563. Under the ACCA, a defendant convicted of being a felon in possession of a firearm faces more severe punishment if he has three or more previous convictions for a “violent felony.” 18 U.S.C. § 924 (e)(2)(B). The Act defines “violent felony” to mean:

“any crime punishable by imprisonment for a term exceeding one year . . . that-
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of ...

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