United States District Court, D. Arizona
G. Campbell United States District Judge
1, 2016, Movant Keith Patrick Manuel, who is confined in the
U.S. Penitentiary in Tucson, Arizona, filed a pro se
“Motion for Time Reduction by an Inmate in Federal
Custody, (28 U.S.C. § 2255).” In an August 22,
2016 Order, the Court denied the Motion because it was not
filed on the court-approved form and gave Movant 30 days to
file an amended § 2255 motion on a court-approved form
September 23, 2016, Movant filed an Amended Motion under 28
U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence
by a Person in Federal Custody (Doc. 4). Movant also filed a
motion for a ten-day extension of time to file a brief in
support of the Amended § 2255 Motion (Doc. 5). The Court
will summarily dismiss the Amended § 2255 Motion and
deny the motion for an extension as moot.
to a plea agreement, Movant pleaded guilty to abusive sexual
contact, occurring on an Indian Reservation, in violation of
18 U.S.C. §§ 1153 and 2244(a)(5). The plea
agreement provided for a sentencing range of 10 to 15 years.
In addition, under the plea agreement, the parties agreed
that a U.S. Sentencing Guidelines § 2A3.4(c)(1)
cross-reference would apply. On March 27, 2013, the Court
sentenced Movant to a 180-month term of imprisonment followed
by lifetime supervised release.
Amended § 2255 Motion
alleges two grounds for relief. Generally, Movant states that
he seeks relief pursuant to United States v.
Johnson, 135 S.Ct. 2551 (2015), and Welch v. United
States, 136 S.Ct. 1257 (2016). (Doc. 4 at 9.)
Ground One, he alleges that his conviction and sentence
“under the violent felony statute[s] governing sex
crimes, etc., is unconstitutionally vag[u]e and violates due
process.” (Doc. 4 at 5.) He argues that 18 U.S.C.
§§ 1153 and 2244(a)(5), rely “on the
provisions of the residual clause language of 18 U.S.C.
§ 16(b) to classify as a predicate violent felony”
and are unconstitutional. He claims that his sentencing
statute, which he identifies as 18 U.S.C. § 25, relies
on § 16(b)'s residual clause and imposes multiple
punishments under the U.S. Sentencing Guidelines. He asserts
that his “career enhancement” relies on §
16(b)'s residual clause and that residual clause language
was used to classify his sentence and conviction as a violent
felony, which thereby violated due process.
Ground Two, Movant alleges that his tribal misdemeanors were
unlawfully used as career offender enhancements under U.S.
Sentencing Guidelines § 4B1.1, of which Movant contends
that he is actually innocent.
district court must summarily dismiss a § 2255
application “[i]f it plainly appears from the motion,
any attached exhibits, and the record of prior proceedings
that the moving party is not entitled to relief.” Rule
4(b), Rules Governing Section 2255 Proceedings for the United
States District Courts. When this standard is satisfied,
neither a hearing nor a response from the government is
required. See Marrow v. United States, 772 F.2d 525,
526 (9th Cir. 1985); Baumann v. United States, 692
F.2d 565, 571 (9th Cir. 1982). In this case, the record shows
that summary dismissal is warranted.
Johnson, the Supreme Court held that the residual
clause of the Armed Career Criminal Act (ACCA), 18 U.S.C.
§ 924(e)(2)(B)(ii), is unconstitutionally vague and
therefore violates due ...