United States District Court, D. Arizona
V. WAKE, SENIOR UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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,
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.
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).
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
(1) the date on which the judgment of conviction becomes
(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 ...