Arnold v. United States

          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 ...