United States District Court, D. New Mexico
MAGISTRATE JUDGE'S PROPOSED FINDINGS AND
KHALSA UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Defendant/Petitioner
Kelly Grant Mercer's Motion for Relief Pursuant to Recent
U.S. Supreme Court Decision, filed July 3, 2018. (Doc. 117.)
The United States' Response to Defendant's Motion for
Relief (Doc. 117) was filed on February 1, 2019. (Doc. 119.)
Mr. Mercer did not file a reply. United States District Judge
James Browning referred the case to me pursuant to 28 U.S.C.
§§ 636(b)(1)(B), (b)(3) and Va. Beach Fed. Sav.
& Loan Ass'n v. Wood, 901 F.2d 849 (10th Cir.
1990), on July 24, 2019. (Doc. 122.) The Court has
meticulously reviewed all of the pleadings and attachments in
this civil proceeding and the record in the underlying
criminal case. For the reasons that follow, the Court
recommends that Defendant's Motion be DENIED.
October 2008, a jury found Defendant guilty of being a felon
in possession of a firearm, contrary to 18 U.S.C. §
922(g)(1) and 18 U.S.C. § 924(a)(2). (Doc. 13; Doc. 92.)
On March 25, 2009, United States District Judge John Conway
sentenced Defendant to a term of 180-months imprisonment
after concluding he was an armed career criminal. (Doc. 103,
121.) Defendant's conviction was affirmed by the Tenth
Circuit on February 17, 2010. (Doc. 112.) And Defendant's
petition for writ of certiorari was denied by the United
States Supreme Court on June 21, 2010. (Doc. 114.) Defendant
filed the present Motion on July 3, 2018. (Doc. 117.) In his
Motion, Defendant challenges his sentence pursuant to
Sessions v. Dimaya, 138 S.Ct. 1204 (2018), and
Johnson v. United States, 135 S.Ct. 2551 (2015).
(Id.) The Court construes Defendant's Motion as
one arising under 28 U.S.C. § 2255. See 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.”).
U.S.C. § 2255, governing remedies on a motion for
attacking a sentence for a prisoner in federal custody
provides, in part, that a motion to vacate, set aside, or
correct a sentence is subject to a one-year period of
limitation. 28 U.S.C. § 2255(f). The limitations period
is triggered by the latest of the following events:
(1) the date on which the judgment of conviction becomes
(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution of laws of the United States is removed, if the
movant was prevented from making a motion by such
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
Id. The judgment of Defendant's conviction
became final more than nine years ago; he has not argued any
government-imposed impediment to challenging his sentence;
and Defendant's arguments are founded on legal, not
factual developments. From these circumstances, and from the
substance of Defendant's Motion, it is clear that the
operative event triggering the limitations period in this
case is that stated in 28 U.S.C. § 2255(f)(3).
Motion is premised on two cases decided by the Supreme
Court-Johnson and Dimaya. (Doc. 117.) In
Johnson the Supreme Court held that the
“residual clause” of the Armed Career Criminal
Act (ACCA), 18 U.S.C. § 924(e) was impermissibly vague
and that sentence enhancements by effect of that provision
violate the due process right guaranteed by the Fifth
Amendment to the United States Constitution.
Johnson, 135 S.Ct. at 2562-63. The Johnson
decision did not impact the enumerated-offense clause of the
ACCA, pursuant to which a person who has committed a
“violent felony” including, of relevance here,
burglary, is subject to an enhanced sentence. Defendant, who
had three prior convictions for residential burglary, was
sentenced under the enumerated-offense clause of the ACCA,
not under the residual clause, and therefore Johnson
does not bear on the validity or fairness of his sentence.
See United States v. Turrieta, 875 F.3d 1340, 1347)
(10th Cir. 2017) (holding that residential burglary in New
Mexico matches the generic form of burglary, therefore
burglary convictions in New Mexico fit the enumerated-offense
clause of the ACCA). (Doc. 119 at 5.)
the circumstances were different (i.e. if Defendant
had been sentenced under the residual clause of the ACAA) he
could not prevail in his present Motion because it is not
timely. The Supreme Court issued the Johnson
decision on June 26, 2015. Accordingly, the time within which
Defendant was permitted to seek relief pursuant to that
decision expired on June 26, 2016. 28 U.S.C. §
2255(f)(3). Defendant filed his Motion on July 3, 2018-more
than two years after the limitations period expired.
Therefore, Defendant's Motion, which is otherwise legally
ineffective, must be dismissed as untimely.
reliance on Dimaya is also unavailing. In
Dimaya, the Supreme Court applied the
Johnson analysis to a provision of the Immigration
and Nationality Act (18 U.S.C. Section 16(b)) that was
similar to the ACAA's residual clause and concluded that,
like its ACAA counterpart, the provision was
unconstitutionally vague. 138 S.Ct. at 1211-15. The provision
at issue in Dimaya affected aliens convicted of an
“aggravated felony” after entering the United
States who were subject to deportation if they were found to
have committed a “crime of ...