United States District Court, D. Arizona
A. TEILTRORG SENIOR UNITED STATES DISTRICT JUDGE.
Claim in this case
has summarized the claim in this case as follows: “Mr.
Lee is before the Court challenging his conviction under 18
U.S.C. § 924(c) for discharging a firearm during and in
relation to a crime of violence under Johnson v. United
States, 135 S.Ct. 2551 (2015), on the ground that the
predicate crime in his case, second-degree murder in
violation of 18 U.S.C. § 1111, is not a ‘crime of
violence' under § 924(c)(3) in the wake of
Johnson.” (Doc. 29 at 1).
before the Court is the second Report and Recommendation
(R&R) issued by the Magistrate Judge recommending that
the Motion to Vacate, Set Aside or Correct Sentence
(“Motion”) in this case be denied. After the
first R&R was issued, the Supreme Court decided Class
v. United States, 138 S.Ct. 798 (2018). After the second
R&R was issued, the Ninth Circuit Court of Appeals
decided United States v. Blackstone, No. 17-55023,
2018 WL 4344096 (9th Cir. Sept. 12, 2018).
first R&R the Magistrate Judge recommended that this
Court find that Movant has waived his right to bring this
Motion via his plea agreement. (Doc. 23 at 6-9). Following
the supplemental briefing on Class, this Court
(mistakenly) believed that the parties agreed that
Petitioner's waiver did not preclude his Motion in this
case. (Doc. 31). This Court re-referred this case to the
Magistrate Judge for a second R&R. In preparing the
second R&R, the Magistrate Judge (correctly) determined
that the parties were not in agreement on whether
Class impacted Respondent's waiver arguments.
Thus, in the second R&R, the Magistrate Judge again
recommends that this Court find that Movant waived his
ability to bring this motion via his plea agreement,
notwithstanding Class. (Doc. 35 at 9-16). Movant
objected to this recommendation.
second R&R, the Magistrate Judge went on, in the event
this Court disagreed regarding the waiver bar, to analyze
Movant's Motion. In that analysis, the R&R
recommended that this Court find the Motion was timely.
However, following the Ninth Circuit Court of Appeals
decision in Blackstone, the Government argues that
the Motion is not timely. Movant suggests that he will argue that
Blackstone is wrongly decided on appeal, and also
argues that he is subject to an exception from
neither Movant's waiver, nor the time bar, prevent the
Court from reaching the merits of the Motion, the second
R&R ultimately concludes that Movant should be given
relief as to his conviction on Count Two. (Doc. 35 at 48).
The Government objects to this recommendation. (Doc. 39).
Review of R&R
Court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1). It is “clear
that the district judge must review the magistrate
judge's findings and recommendations de novo if
objection is made, but not otherwise.” United
States v. Reyna-Tapia, 328 F.3d 1114, 1121
(9th Cir. 2003) (en banc) (emphasis in
original). Both Movant and the Government filed objections to
the R&R. (Docs. 36 and 39). Further, at the Court's
request, each filed a supplemental brief. (Docs. 41 and 42).
discussed above, the first issue this Court must address is
whether Movant waived his ability to bring this Motion via
his plea agreement. The R&R concludes that Movant
expressly waived his ability to bring this Motion. (Doc. 35
at 9-16). Specifically, the R&R notes that the plea
agreement included the following: “The defendant
further waives…(3) any right to collaterally attack
defendant's conviction and sentence under Title 28,
United States Code, Section 2255.” (Doc. 35 at 9).
argues that the type of § 2255 motion he is bringing is
non-waivable; thus, even the express waiver language of his
plea agreement would not bar this Motion. (Doc. 36).
Specifically, Movant argues: 1) a guilty plea does not
implicitly waive any claim that goes to the government's
ability to bring charges in the first instance; and 2) a