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Mendoza-Angiano v. United States

United States District Court, D. Arizona

February 26, 2019

Alejandro Mendoza-Angiano, Movant/Defendant,
v.
United States of America, Respondent/Plaintiff.

          ORDER

          NEIL V. WAKE, SENIOR UNITED STATES DISTRICT JUDGE.

         Before the Court is the Report and Recommendation (“R&R”) of Magistrate Judge Michelle H. Burns (Doc. 17) regarding Alejandro Mendoza-Angiano's Amended Motion Under 28 U.S.C. § 2255 (“Amended § 2255 Motion”) (Doc. 12). Movant filed an objection to the R&R and a supplemental objection, and Respondent filed a response. (Docs. 18, 20, 21.) Because the Amended § 2255 Motion is untimely under 28 U.S.C. § 2255(f) and United States v. Blackstone, 903 F.3d 1020 (9th Cir. Sept. 12, 2018), the Court does not reach the remainder of the issues addressed by the R&R.

         I. BACKGROUND

         On November 8, 2006, Movant was indicted on six felony counts, which included count 2, cultivation of more than 1000 marijuana plants in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), and count 5, possession of a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1). Movant subsequently pled guilty to counts 2 and 5 pursuant to a plea agreement. On June 25, 2007, Movant was sentenced to the stipulated sentence of 17 years.

         On July 16, 2007, Movant filed pro se a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255, asserting that his counsel was ineffective in that Movant felt pressure to take the plea bargain because he was afraid of receiving a life sentence if he went to trial. The Court summarily denied relief on August 10, 2007.

         On October 13, 2015, Movant filed a motion to reduce his sentence after the United States Sentencing Guidelines were amended to reduce certain drug-crime sentences by two guideline levels. The Court summarily denied the motion on October 21, 2015. Movant appealed the ruling, and on June 9, 2016, the Ninth Circuit summarily affirmed.

         On June 14, 2016, Movant submitted a letter to the Court asserting that he is entitled to a sentence reduction pursuant to Johnson v. United States, __ U.S. __, 135 S.Ct. (2015) (decided June 26, 2015). The Clerk of Court treated Movant's letter as a pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. On June 16, 2016, the Court denied the motion as successive, requiring approval from the Ninth Circuit, dismissed the motion without prejudice, and directed the Clerk to refer the motion to the Ninth Circuit. Treating the transferred motion as an application for authorization to file a successive § 2255 motion, the Ninth Circuit found that Movant had made a prima facie showing under Johnson, authorized the filing of a successive § 2255 motion, and deemed it filed on June 14, 2016. Counsel was appointed to represent Movant and filed the Amended § 2255 Motion on May 24, 2017.

         II. LEGAL STANDARD

         A district judge may designate a magistrate judge to submit proposed findings of fact and recommendations for the disposition of applications for post-trial relief by individuals convicted of criminal offenses. 28 U.S.C. § 636(b)(1)(B). If any party files a written objection to the proposed findings and recommendations, the district judge “shall make a de novo determination of those portions of the proposed findings and recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). The district judge “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id.

         III. ANALYSIS

         The Amended § 2255 Motion requests that the sentence imposed under 18 U.S.C. § 924(c) be vacated as the crime is unconstitutionally vague under Johnson v. United States, __ U.S. __, 135 S.Ct. 2551 (2015). Movant contends that the motion is timely under 28 U.S.C. § 2255(f)(3). The R&R recommends that the Amended § 2255 Motion be dismissed as untimely because § 2255(f)(3) does not apply if the Supreme Court has not recognized the right Movant claimed. After briefing regarding objections to the R&R was complete, the Ninth Circuit issued United States v. Blackstone, 903 F.3d 1020 (9th Cir. Sept. 12, 2018), holding that the Supreme Court has not extended Johnson to sentences imposed pursuant to 18 U.S.C. § 924(c).

         A prisoner in custody under sentence of a federal court may move the court to vacate, set aside, or correct the sentence on the ground that the sentence was imposed in violation of the Constitution or federal law within one year of the latest of:

(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from ...

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