United States District Court, D. Arizona
V. Wake, Senior United States District Judge.
the Court is the Report and Recommendation on Motion to
Vacate, Set Aside or Correct Sentence (“R&R”)
of Magistrate Judge James F. Metcalf (Doc. 22) regarding
Bernardo Mancinas-Flores's Amended Motion to Vacate, Set
Aside or Correct Sentence pursuant to 28 U.S.C. § 2255
(“Amended § 2255 Motion”) (Doc. 11). Movant
filed two supplemental briefs, Respondent filed a response,
and Movant filed a reply. (Docs. 24, 26, 30, 34.)
Subsequently, Respondent filed a notice of supplemental
authority. (Doc. 35.) 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.
October 19, 2005, Movant and a co-defendant were indicted on
charges of conspiracy to commit hostage taking, hostage
taking, conspiracy to harbor illegal aliens, and harboring
illegal aliens. On August 22, 2006, a Superseding Indictment
was filed adding a charge of possession or use of a firearm
in a crime of violence, in violation of 18 U.S.C. §
924(c). Following a failed plea colloquy, Movant was
convicted on all counts by a jury and was sentenced to an
effective life sentence. Movant appealed, and the Ninth
Circuit reversed and remanded.
remand, Movant entered into a written plea agreement and
entered a guilty plea on the firearms charge on October 20,
2010. On July 6, 2011, Movant was sentenced to prison for 480
months, with credit for time served. Movant filed an Amended
Notice of Appeal from his resentencing and subsequently
voluntarily dismissed the appeal on March 13, 2012.
September 19, 2016, Movant filed his original Motion to
Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C.
§ 2255, arguing that his sentence pursuant to 18 U.S.C.
§ 924(c)(1)(A) is unconstitutional in light of
Johnson v. United States, __ U.S. __, 135 S.Ct. 2551
(2015) (decided June 26, 2015). Counsel was subsequently
appointed and filed an Amended Motion to Vacate (Doc. 11),
raising the same claim under Johnson and adding
additional argument. In its response, Respondent argues that
Johnson is inapplicable, the motion is untimely, and
Movant waived his rights to bring the present claim.
Movant's reply focuses on Johnson's
applicability and does not address the statute of limitations
or waiver issues.
24, 2017, the R&R was filed, recommending that the
Amended § 2255 Motion be dismissed with prejudice. (Doc.
22.) The Court ordered supplemental briefing, which was
completed June 27, 2018.
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) because it was filed within one year after
Welch v. United States, __ U.S. __, 136 S.Ct. 1257
(2016), was decided and made Johnson retroactive to
cases that are final on direct review. Among other things,
Respondent contends that the motion is untimely because it
was filed more than one year after Movant's judgment of
conviction became final and § 2255(f)(3) does not apply
because there has not been a new right recognized by the
United States Supreme Court. The R&R recommends that the
Amended § 2255 Motion be dismissed as untimely because
the original motion was filed on September 19, 2016, more
than one year after Johnson was decided and any
claims not based on Johnson would be untimely based
on the date his conviction was final. After briefing
regarding the R&R was complete, the Ninth Circuit decided
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 ...