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Morales v. United States

United States District Court, D. Arizona

January 28, 2015

Erick David Morales, Movant/Defendant,
v.
United States of America, Respondent/Plaintiff.

REPORT & RECOMMENDATION ON MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE

JAMES F. METCALF, Magistrate Judge.

I. MATTER UNDER CONSIDERATION

Movant, following his conviction in the United States District Court for the District of Arizona, filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 on January 13, 2014 (Doc. 1). On July 14, 2014, Respondent filed its Response (Doc. 9). Movant filed a Reply on September 29, 2014 (Doc. 13).

The Movant's Motion is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 10, Rules Governing Section 2255 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.

II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND

A. FACTUAL BACKGROUND AND PROCEEDINGS AT TRIAL

Movant's federal conviction as a felon in possession of a firearm and ammunition arises out of a chain of state convictions.

Original State Criminal Conviction - On December 29, 2006, Movant was arrested after being found to be in possession of a concealed handgun. On February 28, 2007, Movant pled guilty in Maricopa County Superior Court case JV 544557, a juvenile delinquency proceeding, to one count of being a minor in possession of a firearm, a "Class 6 Undesignated Felony." (Exhibit B, Plea Agreement and M.E. 2/28/07.)[1] On April 4, 2007, Movant was placed on probation. (Exhibit B, M.E. 4/4/7.)

Underlying State Criminal Conviction - On April 17, 2009, Movant was found to be in possession of a shotgun despite being a prohibited possessor because of his prior conviction. On December 28, 2009, Movant pled guilty in Maricopa County Superior Court case CR2009-126767-001 to one count of Solicitation to Commit Misconduct Involving Weapons, a "Class 6 undesignated felony." (Exhibit E.) On January 12, 2010, Movant was found guilty of the offense, and Movant's sentence in that proceeding was suspended, and he was placed on two years' probation. (Exhibit F, Order 1/12/10.)

Re-Designation of First State Offense - On November 18, 2009, during the pendency of Movant's second state prosecution, Movant's offense in his 2007 juvenile prosecution (JV 544557) was re-designated as a misdemeanor. (Petition, Doc. 1 at Exhibit B, M.E. 11/18/09 in JV544557.)

Federal Offense - On June 3, 2010, Movant was found to be in possession of a firearm with loaded magazine, compatible ammunition, and another magazine. (Petition, Doc. 1 at Exhibits, M.E. 11/18/09.)

Re-Designation of Second State Offense - On August 9, 2011, during the pendency of the instant federal prosecution, Movant was discharged from probation in the 2010 state prosecution, and the offense was designated as a misdemeanor. (Exhibit G).

Federal Trial - On November 30, 2010, Movant was indicted in the underlying criminal case, CR-10-1706-PHX-GMS, on charges of being a felon in possession in violation of 18 U.S.C. § 922(g)(1) and 924(a)(2). The charges stemmed out of the conduct on June 3, 2010.

The Government filed a Motion in Limine (CR Doc. 51) seeking to preclude evidence of the designation of the underlying criminal conviction as a misdemeanor. Movant did not object, and the motion was granted. (CR Doc. 71, Order 3/16/12.)

Movant and the Government entered into a stipulation that Movant had been convicted on January 12, 2010 of a crime punishable for a term exceeding one year in the state prosecution. (Exhibit H, Stipulation.) Based on that stipulation, the Court precluded evidence of the shotgun in connection with the offense. (CR Doc. 75, Order 3/22/12 at 2.)

Movant proceeded to a jury trial. In disposing of Movant's direct appeal, the Ninth Circuit summarized the evidence at trial as follows:

[A] firearm - which contained a loaded magazine - was found next to Morales's bed, in a room he occupied exclusively. In a bedside dresser, police officers found two boxes and a Ziploc bag full of ammunition compatible with the firearm; in his closet, they found another loaded magazine compatible with the firearm and a copy of a bill of sale matching the firearm. Morales's fingerprints were on the Ziploc bag and one of the boxes of ammunition.

(CRDoc. 116, Mem. Dec. at 2.)

Movant was found guilty and was sentenced to 41 months in prison. (CR Doc. 96, Sentence.)

B. PROCEEDINGS ON DIRECT APPEAL

Movant filed a direct appeal arguing insufficient evidence based on his arguments that he did not have control over the weapon and ammunition because they were in a residence owned and jointly resided in by his parents, that his father was going to use the weapon recreationally, and Movant was never at the house when the gun was present. The Ninth Circuit found sufficient evidence to sustain the conviction, and affirmed. (CR Doc. 116, Mem. Dec.)

C. PRESENT MOTION TO VACATE

Motion to Vacate - Movant commenced the current case by filing his Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 on January 13, 2014 (Doc. 1). Movant's Motion asserts the following four grounds for relief:

1. Ineffective assistance of counsel for entering into the stipulation regarding the prior conviction, thereby denying Movant his right to a jury trial on the issue;

2. Actual innocence based on his not being a prohibited person under Arizona law;

3. Ineffective assistance of counsel for not adequately investigating the prior conviction; and

4. Ineffective assistance of counsel for not objecting to the Government's Motion in Limine.

Response - On July 14, 2014, the Government filed its Response (Doc. 9). Respondent argues that Movant's ineffective assistance claims (Grounds 1, 3, and 4) are without merit, and his actual ...


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