United States District Court, D. Arizona
ORDER
Honorable Stephen M. McNamee Senior United States District
Judge
Before
the Court is Petitioner's Motion to Vacate, Set Aside, or
Correct Sentence Under 28 U.S.C. § 2255; or, in the
Alternative, Petition for a Writ of Habeas Corpus Pursuant to
28 U.S.C. § 2241. (Doc. 1.) The matter was referred to
Magistrate Judge Deborah M. Fine for a Report and
Recommendation, who filed a Report and Recommendation with
the Court recommending that Petitioner's petition be
denied and dismissed with prejudice. (Docs. 26; 41 at 12.)
The Magistrate Judge further recommended that the Court issue
a Certificate of Appealability. (Doc. 41 at 12.) Petitioner
filed Objections to the Report and Recommendation (Doc. 42),
Respondent filed a Response to Petitioner's Objections
(Doc. 43), and Petitioner filed Supplemental Authority in
support of his Objections (Doc. 44). After considering the
Report and Recommendation and Petitioner's Objection
thereto, the Court now issues the following ruling.
I.
BACKGROUND
Petitioner
does not object to the Report and Recommendation's
recitation of facts, and therefore the Court adopts it
summarily. In 1998, Petitioner was convicted of two counts of
bank robbery in violation of 18 U.S.C. § 2113(a) and two
counts of using a firearm during a crime of violence (bank
robbery) in violation of 18 U.S.C. § 924(c). (Doc. 41 at
2.) Petitioner was sentenced to a mandatory life sentence
pursuant to 18 U.S.C. § 3559(c) and a mandatory
consecutive 25-year sentence pursuant to § 924(c), and
Petitioner was designated a career offender under §
4B1.1 of the United States Sentencing Guidelines
(“U.S.S.G.”). (Id.) Petitioner filed an
appeal, arguing that the Court committed error on evidentiary
grounds. (Id.) However, the Ninth Circuit affirmed
this Court's decision. (Id.)
Petitioner
argues that he is entitled to resentencing relief because the
residual clauses of § 3559(c)(2)(F)(ii), §
924(c)(3)(B), and § 4B1.2(a) are unconstitutionally
vague in light of Johnson v. United States, 135
S.Ct. 2551 (2015) (“Johnson II”).
(Id.) Petitioner further contends that his petition
is timely pursuant to 28 U.S.C. § 2255(f)(3) because
Johnson II applies retroactively to cases on
collateral review and Petitioner filed his petition within
one year of the Johnson II decision. (Id.)
II.
STANDARD OF REVIEW
When
reviewing a Magistrate Judge's Report and Recommendation,
this Court “shall make a de novo determination of those
portions of the report…to which objection is made,
” and “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)(C);
see also Baxter v. Sullivan, 923 F.2d 1391, 1394
(9th Cir. 1991) (citing Britt v. Simi Valley Unified Sch.
Dist., 708 F.2d 452, 454 (9th Cir. 1983)).
Rule
72(b)(3) of the Federal Rules of Civil Procedure requires a
district judge to review de novo those portions of the Report
and Recommendation that have been “properly
objected to.” Fed.R.Civ.P. 72(b)(3) (emphasis added). A
proper objection requires “specific written
objections to the proposed findings and
recommendations.” Fed.R.Civ.P. 72(b)(2) (emphasis
added). The Court will not review generalized objections, nor
undertake a global reevaluation of the merits of
Petitioner's grounds for relief. Warling v.
Ryan, No. CV 12-01396-PHX-DGC(SPL), 2013 WL 5276367, at
*2 (D. Ariz. Sept. 19, 2013) (citation omitted).
III.
DISCUSSION
The
Magistrate Judge recommended that Petitioner's petition
be denied as untimely “because the Supreme Court has
not recognized that [Johnson II] extends to the
residual clauses of 18 U.S.C. § 924(c), U.S.S.G. §
4B1.1, or 18 U.S.C. § 3559(c)(2)(F)(ii).” (Doc. 41
at 4, 8 (citing United States v. Blackstone, 903
F.3d 1020, 1026 (9th Cir. 2018)).) In addition, the
Magistrate Judge found that, because Petitioner did not
establish actual innocence, he is not entitled to have his
§ 3559(c) claim heard on the merits pursuant to §
2255(f)(3). (Id. at 11.) Petitioner raises two
objections.
First,
Petitioner argues that Blackstone does not render
his petition untimely because the unconstitutionality of
§ 924(c)(3)(B), § 4B1.2(a)(2), and §
3559(c)(2)(F)(ii) is a “straightforward
application” of Johnson II.[1] (Doc. 42 at 2-3.)
The Court disagrees. Because the Supreme Court has not yet
recognized the right that Petitioner seeks to assert -
namely, that the residual clauses of § 924(c)(3)(B),
§ 4B1.2(a)(2), and § 3559(c)(2)(F)(ii) are void for
vagueness - the Court agrees with the Magistrate Judge's
finding that Petitioner's petition is untimely. See
Blackstone, 930 F.3d at 1025-26.
Next,
Petitioner argues that, even if his petition is untimely, he
is entitled to have his petition heard on the merits because
he is actually innocent of the § 3559(c) conviction.
(Doc. 42 at 3-8 (citing McQuiggin v. Perkins, 133
S.Ct. 1924, 1932 (2013)).) Specifically, Petitioner states
that, because Johnson II rendered §
3559(c)(2)(F)(ii)'s residual clause void for vagueness
and because his second-degree murder conviction does not
constitute a “serious violent felony” under
either the enumerated offenses or the elements clause of
§ 3559(c), Petitioner is actually innocent of the §
3559(c) conviction. (Id.) The Court disagrees.
First, the Court agrees with the Magistrate Judge that
Petitioner's argument is not based on a claim of factual
innocence because “‘[a]ctual innocence' means
factual innocence, not mere legal insufficiency.”
See Bousley v. United States, 523 U.S. 614, 623
(1998). Thus, Petitioner's argument does not establish
actual innocence. In addition, Petitioner's argument is
inconsistent with the reasoning in Blackstone.
Because Petitioner's argument cannot be separated from
Blackstone's holding, the Court finds that
Petitioner has failed to establish that he is actually
innocent of the § 3559(c) conviction. See United
States v. Johnson, No. CR 11-140-BLG-SPW-01, CV
16-077-BLG-SPW, 2018 WL 5619662, at *1 (D. Mont. Oct. 29,
2018). Therefore, the Court agrees with the Magistrate Judge
that Petitioner is not entitled to have his claim heard on
the merits.
IV.
CERTIFICATE OF APPEALABILITY
The
Magistrate Judge recommended that the Court issue a
Certificate of Appealability, stating that the
Blackstone opinion is not yet final because the
docket “indicates that on January 22, 2019, Appellant
Blackstone filed a Motion to Stay Mandate pending filing of a
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