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Mancinas-Flores v. United States

United States District Court, D. Arizona

February 26, 2019

Bernardo Mancinas-Flores, 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 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.

         I. BACKGROUND

         On 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.

         On 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.

         On 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.

         On July 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.

         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) 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).

         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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