Pete v. USA

Filing 12

ORDER that the reference to the Magistrate Judge is WITHDRAWN. Petitioner Branden Pete's 7 Amended Motion to Vacate, Set Aside, or CorrectSentence by a Person in Federal Custody (28 U.S.C. § 2255) is GRANTED; and because the petitioner i s seeking the identical relief in United States v. Pete, (Doc. 337 in CR-03-0355-PCT-RCB), that motion is GRANTED. Petitioner Branden Pete shall be resentenced on Monday, the 3rd day of March, 2014, at 10:00 a.m. in Courtroom 606, Sandra Day O'Connor United States Courthouse, 401 West Washington, Phoenix, Arizona 85003. Signed by Senior Judge Robert C Broomfield on 1/6/2014. (LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Branden Pete,
Petitioner,

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No. CV 13-8149-PCT-RCB (DKD)
CR 03-0355-PCT-RCB

v.

ORDER

United States of America,
Respondent.

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Pending before the court is an amended “Motion to Vacate, Set Aside, or Correct

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Sentence by a Person in Federal Custody (28 U.S.C. § 2255)” filed by petitioner

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Branden Pete, pro se, who is confined in the U.S. Penitentiary in Florence, Colorado

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(Doc. 7). The petitioner is seeking to be resentenced in light of Miller v. Alabama, 567

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U.S. ----, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), wherein the Court held “that the

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Eighth Amendment forbids a sentencing scheme that mandates life in prison without

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possibility of parole for juvenile offenders.” Id. at ----, 132 S.Ct. at 2469 (citation

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omitted). The United States does not oppose this motion. See Resp. (Doc. 11) at 6:6-8.

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Accordingly, as set forth below, the court hereby GRANTS the petitioner’s amended

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motion under 28 U.S.C. § 2255.

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Prior Proceedings
The petitioner was convicted by a jury of second degree murder, a lesser included
offense of first degree murder, in violation of 18 U.S.C. § 1153 and 1111, as charged in

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count one of the superseding indictment; felony murder in the course of a kidnapping in

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violation of 18 U.S.C. §§ 1153 and 1201(a)(2), as charged in count two of the

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superseding indictment; felony murder in the course of aggravated sexual abuse in

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violation of 18 U.S.C. §§ 1153, 1111, and 2241(a)(1), as charged in count four of the

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superseding indictment; and conspiracy to commit murder in violation of 18 U.S.C.

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§ 1117, as charged in count seven of the superseding indictment (Doc. 302). At the time

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of the offenses, the petitioner was a juvenile; he was 16 years old. On April 17, 2006,

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this court sentenced him to concurrent life terms on each of those counts, followed by

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five years on supervised release. Id.

On June 10, 2008, the Ninth Circuit mandate

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issued, which affirmed the petitioner’s conviction and sentences (Doc. 329); and on

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October 6, 2008, the Supreme Court denied certiorari, Pete v. U.S., 555 U.S. 926, 129

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S.Ct. 298, 172 L.Ed.2d 218 (2008).

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Amended § 2255 Motion

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In his amended § 2255 motion, the petitioner alleges one ground for relief.

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petitioner was 16 years old at the time of the offenses. At the petitioner’s sentencing, this

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court was statutorily mandated by 18 U.S.C. § 1111 to impose a sentence of life in prison

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without possibility of parole. The Supreme Court in Miller, 132 S.Ct. 2455, held that

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juvenile homicide offenders could not be sentenced to life in prison without possibility of

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parole without being afforded an opportunity to present mitigating evidence to support a

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sentence less than life without parole. “The Court explained that ‘[m]andatory life

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without [the possibility of] parole for a juvenile precludes consideration’ of the

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defendant's ‘chronological age and its hallmark features,’ the defendant's ‘family and

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home environment,’ the ‘circumstances of the [underlying] homicide offense,’ the fact

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that the offender ‘might have been charged and convicted of a lesser offense if not for

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incompetencies associated with youth,’ and ‘the possibility of rehabilitation.’” Bell v.

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Uribe, 729 F.3d 1052, 1063 (9th Cir. 2013) (quoting Miller, 132 S.Ct. at 2468). “The

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Court stated that the Eighth Amendment requires ‘judge or jury . . . to consider [such]

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mitigating circumstances before imposing the harshest penalty possible for juveniles.’”

The

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Id. (quoting Miller, 132 S.Ct. at 2475).

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The petitioner contends that Miller applies retroactively to his conviction, and thus

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the court should “[c]onduct a new hearing allowing him to present mitigating evidence in

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support of a sentence less tha[n] life without parole[.]” See Mot. (Doc. 7) at 6:7-8, ¶

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16(b).

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the petitioner’s “request to be resentenced on an open record.” See Resp. (Doc. 11) at

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2:8-9 (citation omitted).

The United States agrees that Miller applies retroactively, and it does not oppose

Conclusion

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In light of the foregoing, the court HEREBY ORDERS that:

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(1) the reference to the Magistrate Judge (see Doc. 8) is WITHDRAWN;

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(2) petitioner Branden Pete’s amended “Motion to Vacate, Set Aside, or Correct

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Sentence by a Person in Federal Custody (28 U.S.C. § 2255)” (Doc. 7 – CV-13-8149-

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PCT-RCB(DKD) is GRANTED;

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(3) and because the petitioner is seeking the identical relief in United States v.
Pete, (Doc. 337 - CR- 03-0355-PCT-RCB), that motion is GRANTED;

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(4) petitioner Branden Pete shall be resentenced on Monday, the 3rd day of March,

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2014, at 10:00 a.m. in Courtroom 606, Sandra Day O'Connor United States Courthouse,

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401 West Washington, Phoenix, Arizona 85003.

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DATED this 6th day of January, 2014.