United States District Court, D. Arizona
REPORT AND RECOMMENDATION
EILEEN S. WILLETT, Magistrate Judge.
TO THE HONORABLE G. MURRAY SNOW, UNITED STATES DISTRICT JUDGE:
Two matters are currently ripe for the Court's decision. The first matter is Defendant/Movant Jorge Daniel Lopez-Mejia's ("Movant") amended "Motion under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody" (Doc. 7), filed on June 2, 2014 (the "First Amended Motion to Vacate"). The second matter is the United States' "Motion to Strike or Dismiss Second Amended Motion to Vacate Under § 2255" (Doc. 19), filed on February 19, 2015 (the "Motion to Strike Movant's Second Amended Motion to Vacate"). In its January 23, 2015 Order (Doc. 17), the Court granted Movant leave to file a second amended Motion to Vacate. On February 9, 2015, Movant filed a second amended "Motion under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody" (Doc. 18) (the "Second Amended Motion to Vacate"), but failed to comply with the Court's Order (Doc. 17).
For the following reasons, the undersigned recommends that the Court grant United States' Motion to Strike Movant's Second Amended Motion to Vacate (Doc. 19). The undersigned further recommends that the Court deny and dismiss with prejudice Movant's First Amended Motion to Vacate (Doc. 18).
On September 8, 2009, a federal grand jury indicted Movant and ten co-defendants on one count of conspiracy to possess with intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. § 846 (Count 1), and one count of aiding and abetting the possession of a firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C. §§ 924(c) and 2 (Count 2). (CR-09-01145-PHX-GMS, CR Doc. 28.) The District Court denied Movant's Motion to Dismiss for Outrageous Government Conduct (CR Doc. 268), and Movant proceeded to a jury trial. The jury found Movant guilty on both counts and further found that Movant conspired with intent to distribute cocaine weighing five kilograms or more (CR Doc. 325). A motion for joint hearing on sentencing entrapment (CR Doc. 348) was considered. However, the District Court found no sentencing entrapment on either basis raised (RT 3/16/11 at 9). On March 16, 2011, the District Court sentenced Movant to 120 months imprisonment on Count 1 with a consecutive 60 month term of imprisonment on Count 2 (CR Docs. 462 and 475).
Movant appealed his conviction on two issues: (1) whether the District Court erred in denying the Motion to Dismiss Indictment for Outrageous Government Conduct; and (2) whether the District Court erred in determining the government did not engage in sentencing entrapment (CA Doc. 37). The Ninth Circuit Court of Appeals upheld the District Court (CA Doc. 37). The Ninth Circuit's mandate issued on May 20, 2013.
On June 2, 2014, Movant filed his First Amended Motion to Vacate (Doc. 7). He sets forth three grounds for relief: (1) the rule announced by the United States Supreme Court in Alleyne v. United States, 133 S.Ct. 2151 (2013), is "a new substantive rule of statutory interpretation and should be given retroactive effect in [Movant's] case"; (2) the "mandatory effect of the Mandatory Sentencing system, under which [Movant] was sentenced, is a violation of [Movant's] Fifth and Sixth Amendment rights"; and (3) in light of Alleyne, Movant received "critically incorrect legal advice" when the Court, prosecutor, and defense counsel advised him "the requisite factual predicate was not an element of the crime with which he was charged" and, therefore, Movant suffered an ex post facto violation of his Fifth and Sixth Amendment rights. The Court required the United States to file a Response (Doc. 10). The United States filed its Response on July 29, 2014 (Doc. 11).
II. UNITED STATES' MOTION TO STRIKE MOVANT'S SECOND AMENDED MOTION TO VACATE
On September 18, 2014, Movant filed his Motion for Leave to Amend Petition under § 2255 (Doc. 13). The Court granted the Motion for Leave to Amend by Order filed January 23, 2015 (Doc. 17). The Court set forth specific, mandatory parameters for Movant to follow to file Movant's Second Amended Motion to Vacate. Id. The purpose of the Court's Order was to allow Movant the opportunity to amend Ground Three only of his First Amended Motion to Vacate (Doc. 7) to reflect that Movant proceeded to a jury trial, rather than a change of plea. The Court specifically set forth the manner in which Movant was to submit his Second Amended Motion to Vacate as follows:
Movant must comply with the following in submitting his Second Amended Motion to Vacate:
1. Movant must submit the Second Amended Motion to Vacate on the court-approved form and sign it under penalty of perjury. See Rule 2(c), Rules Governing Section 2255 Proceedings; LRCiv 3.5(a); and the Court's April 29, 2014 Order (Doc. 6). The Clerk of Court will mail Movant the court-approved form.
2. Movant must clearly designate on the face of the document that it is a "Second Amended Motion to Vacate."
3. The Second Amended Motion to Vacate must be typed or legibly written in its entirety on the court approved form and may not incorporate any part of the First Amended Motion to Vacate by reference. Movant must describe ...