United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
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.
AND LEGAL BACKGROUND
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).
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
“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).
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).
LAW ON JOHNSON V. UNITED STATES AND SECTION 2255 COLLATERAL
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. §
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 ...