United States District Court, D. New Mexico
Gallardo USP Terre Haute Terra Haute, Indiana Movant pro se.
MEMORANDUM OPINION AND ORDER OF DISMISSAL
MATTER comes before the Court on the
Defendant/Movant's hand-written filing that the Court
received and filed on January 19, 2017 (CR Doc.
92)(“Filing”). The Court has reviewed the docket
in Defendant/Movant Blake Gallardo's criminal case, No.
CR 15-1504. The Court determines that Gallardo's Filing
does not articulate any grounds for relief, and the Court
will dismiss the Filing.
BACKGROUND AND CONSTRUCTION OF GALLARDO'S
submitted his hand-written Filing to the Court on January 19,
2017. See Filing at 1. In his filing, he states:
I became aware of the residual clause that falls under the
Johnson issue I know that the deadline for the Johnson case
was June 26, 2016 At that time I was on lockdown I'm not
good with any of the legal terms but I would like to know if
the Johnson residual clause apply to me.
at 1. Gallardo's Filing appears to inquire about the
possibility of collaterally challenging his sentence on the
grounds that it is unconstitutional under the Supreme Court
of the United States' ruling in Johnson v. United
States, 135 S.Ct. 2551 (2015). See Filing at 1.
Gallardo may challenge his sentence, however, only by a
motion under 28 U.S.C. § 2255. See 28 U.S.C.
§ 2255(a), (e); Bradshaw v. Story, 86 F.3d 164,
166 (10th Cir. 1996)(“The exclusive remedy for testing
the validity of a judgment and sentence, unless it is
inadequate or ineffective, is that provided for in 28 U.S.C.
§ 2255.”). Pursuant to Castro v. United
States, 540 U.S. 375 (2003), if:
a court recharacterizes a pro se litigant's motion as a
first § 2255 motion . . .the district court must notify
the pro se litigant that it intends to recharacterize the
pleading, warn the litigant that this recharacterization
means that any subsequent § 2255 motion will be subject
to the restriction on “second or successive”
motions, and provide the litigant an opportunity to withdraw
the motion or to amend it so that it contains all the §
2255 claims he believes he has.
Castro v. United States, 540 U.S. at 383. Because,
as set out below, Gallardo would never be eligible for relief
under Johnson v. United States, the Court declines
to construe his hand-written filing as a First § 2255
motion and a subsequent § 2255 motion will not be
subject to the restrictions on second or successive motions
under 28 U.S.C. § 2255(h).
LAW ON JOHNSON V. UNITED STATES AND SECTION 2255
Johnson v. United States, the Supreme Court held
that the residual clause of the Armed Career Criminal Act, 18
U.S.C. § 924(e) (“ACCA”), is impermissibly
vague and that imposing an increased sentence under that
provision violates the Fifth Amendment to the Constitution of
the United States of America's guarantee of due process.
See 135 S.Ct. at 2562-63. 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 ACCA defines “violent
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 physical injury to another.
18 U.S.C. § 924(e)(2)(B) (emphasis added). The Supreme
Court, in Johnson v. United States, struck down the
italicized residual clause as unconstitutionally vague.
See 135 S.Ct. At 2555-63. The language of §
924(e)(2)(B)(i), which defines “violent felony”
as a crime that “has as an element the use, attempted
use, or threatened use of physical force, ” is commonly
referred to as the “element” or
“force” clause. The “enumerated”
clause is the language of § 924(e)(2)(B)(ii) that lists
particular offenses that are violent felonies. The Supreme
Court expressly stated that its holding with respect to the
residual clause does not call into question the ACCA's
application to the four enumerated offenses or to the
remainder of the definition of a violent felony in §
924(e)(2)(B). See 135 S.Ct. ...