United States District Court, D. Arizona
HONORABLE RANER C. COLLINS SENIOR UNITED STATES DISTRICT
before the Court is Petitioner's Amended § 2255
Motion to Vacate, Set Aside, or Correct Sentence. (Doc.
Petitioner asked the Court to vacate his convictions on four
counts of possession of a firearm during a crime of violence
under 18 U.S.C. § 924(c), claiming these convictions
were unconstitutional after Johnson v. United
States, 135 S.Ct. 2551 (2015). Id. On July 24,
2017, the Court granted Respondent's Motion to Stay this
case pending Ninth Circuit's determination in United
States v. Begay, No. 14-10080 (9th Cir. Feb. 20, 2014),
and the Supreme Court's decision in Sessions v.
Dimaya, 138 S.Ct. 1204 (2018). (Doc. 12.) The
Dimaya opinion was subsequently released, but the
Ninth Circuit deferred its ruling in Begay pending
the outcome of United States v. Davis, 138 S.Ct.
2319 (Jun. 24, 2019). Once the Supreme Court decided
Davis and found the residual clause of § 924(c)
unconstitutional, this Court ordered Respondent to answer.
the current caselaw, Respondent admits that Petitioner's
convictions under § 924(c)(3)(A) are unconstitutional.
(Doc. 17.) Respondent now asks the Court to grant the Motion
to Vacate as to his convictions under § 924(c).
amended complaint supersedes the original. Ferdik v.
Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal
Roach Studios v. Richard Feiner & Co., 896 F.2d
1542, 1546 (9th Cir. 1990). After amendment, the Court will
treat the original complaint as nonexistent. Ferdik,
963 F.2d at 1262.
in this instance, counsel was appointed under General Order
16-07 (superseded by General Order 16-20) to screen
Petitioner's case for viable claims under
Johnson. (Doc. 3.) Counsel filed an Amended Motion,
stating Petitioner “now files this amended petition
concerning his claim under Johnson.” (Doc. 5
at 3.) Because Petitioner was appointed counsel pursuant to
General Order, and based on counsel's statement and
Petitioner's subsequent Motion to Amend (Doc. 7), it
appears that Petitioner only intended to amend his petition
as to his Johnson claim. Therefore, the Court will
require an answer from the government addressing
Petitioner's remaining claim - Ground One, asserting
ineffective assistance of trial counsel.
IT IS ORDERED:
Petitioner's Amended Motion to Vacate, Set Aside or
Sentence Under 28 U.S.C. § 2255 is GRANTED. (Doc. 5 in
Petitioner's original motion is DENIED IN PART. (Doc. 1
in CV-16-00725-TUC-RCC; Doc. 266 in CR-12-01025-RCC-LAB-1.)
Petitioner's Grounds Two and Three are DENIED AS MOOT.
Within 30 days of the date of this Order, the government must
respond to Ground One of the original § 2255 motion
(Doc. 1 in CV-16-00725-TUC-RCC; Doc. 266 in
CR-12-01025-RCC-LAB-1). Mr. Perez-Arellanez may file a reply,
pro se, to the government's response.
Petitioner's § 924(c) sentences in
CR-12-1025-TUC-RCC are VACATED.
Probation Office shall (1) generate Mr. Perez-Arellanez's
Inmate Profile or SENTRY Report, and (2) file an addendum to
Mr. Perez-Arellanez's Presentence Report that contains
Mr. Arellanez's amended Guidelines range and a summary of
the Inmate Profile.
Probation shall be prepared to meet and confer about the
Inmate Profile with Mr. Perez-Arellanez's counsel and the
government within 30 days of the date of this Order.
Either party may, within 30 days after meeting and conferring
with Probation, request that the Probation Office provide Mr.
Perez-Arellanez's Progress Report and Disciplinary
Records from the Bureau of Prisons. If either party so
requests, Probation shall serve the Progress Report and