United States of America v. Nevarez

Filing 8

ORDER LIFTING STAY AND DENYING MOTION TO VACATE SENTENCE 1 by Judge Robert H. Whaley. IT IS HEREBY ORDERED: 1. The Court lifts the stay in this matter. 2. Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C.  7; 2255, ECF No. 251, is DENIED. IT IS SO ORDERED. The District Court Executive is directed to enter this Order, forward copies to the United States Attorneys Office and Defendant/Petitioner at his prison address, and close the file. (MD JS-6. Case Terminated) (jre)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
EASTERN DIVISION

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JUAN GUILLERMO NEVAREZ,
Defendant/Petitioner,
v.
UNITED STATES OF AMERICA,

Nos. ED CV-14-1471-RHW
ED CR-07-145-RHW
ORDER LIFTING STAY AND
DENYING MOTION TO VACATE
SENTENCE

Plaintiff/Respondent.

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Before the Court is Defendant/Petitioner’s Motion to Vacate Pursuant to 28
U.S.C. § 2255. ECF No. 251.

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BACKGROUND

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On December 18, 2009, Petitioner pled guilty to conspiring to traffic in

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cocaine and methamphetamine. ECF No. 146. Pursuant to a mandatory minimum,

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the Court sentenced Petitioner to 20 years in prison and 10 years of supervised

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release on May 18, 2010. ECF No. 181. On September 13, 2011, Petitioner filed a

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motion to vacate his sentence pursuant to 28 U.S.C. § 2255. ECF No. 235. The

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Court denied Petitioner’s first motion to vacate on May 12, 2012. ECF No. 244.

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On July 17, 2014, Petitioner filed the instant motion to vacate his sentence

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pursuant to 28 U.S.C. § 2255. ECF No. 251. On August 19, 2014, this Court

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entered an Order directing the United States Attorney’s Office to respond. ECF

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No. 252. On September 2, 2014, the United States of America responded and then

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Petitioner filed his timely reply eight days later. ECF Nos. 253 and 254. The main
ORDER LIFTING STAY AND DENYING MOTION TO VACATE
SENTENCE ~ 1

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substantive issue in Petitioner’s motion is whether the Supreme Court’s decision in

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Descamps v. United States, 133 S.Ct. 2276 (2013) is retroactively applicable. As a

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case on this precise issue was making its way through the Ninth Circuit at the time,

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the Court entered an order staying this action until the case was decided. ECF No.

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256. The case, Ezell v. United States, 778 F.3d 762 (9th Cir. 2015), has been

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decided and accordingly, the Court lifts the stay in this case. For the reasons set

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forth below, the Court also denies Petitioner’s motion to vacate his sentence

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pursuant to 28 U.S.C. § 2255.

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DISCUSSION

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28 U.S.C. § 2255(h) provides that:

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[a] second or successive motion must be certified as provided
in section 2244 by a panel of the appropriate court of appeals to
contain--

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(1) newly discovered evidence that, if proven and viewed in
light of the evidence as a whole, would be sufficient to establish by
clear and convincing evidence that no reasonable factfinder would
have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was previously
unavailable.
Thus, as the Ninth Circuit recently noted, § 2255(h) creates a jurisdictional
bar to the petitioner’s claims: ‘if the petitioner does not first obtain our
authorization, the district court lacks jurisdiction to consider the second or
successive application.’ ” Ezell, 778 F.3d at 765 (quoting United States v. Lopez,
577 F.3d 1053, 1061 (9th Cir. 2009).
Here, Petitioner has already had one motion to vacate under 28 U.S.C. §
2255 denied. ECF No. 244. He has not obtained certification from the Ninth
Circuit that his second motion contains new evidence or a new rule of
constitutional law has been made retroactively applicable. As such, the Court lacks

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ORDER LIFTING STAY AND DENYING MOTION TO VACATE
SENTENCE ~ 2

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the authority to consider Petitioner’s second motion to vacate his sentence because

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he has not fulfilled the requirements of 28 U.S.C. § 2255(h).

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Even if the Court could consider the merits of Petitioner’s motion, the result

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would be the same. Petitioner argues that Descamps announced a new rule of law.

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ECF No. 251 at 3. In Ezell, the Ninth Circuit squarely rejected this argument and

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noted that Descamps was a statutory interpretation case that clarified the

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application of the modified categorical approach. Ezell, 778 F.3d at 766. The panel

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expressly held that “Descamps did not announce a new rule, and even if it did, that

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rule is not constitutional.” Id. at 767.

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Accordingly, IT IS HEREBY ORDERED:

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1. The Court lifts the stay in this matter.

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2. Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28

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U.S.C. § 2255, ECF No. 251, is DENIED.
IT IS SO ORDERED. The District Court Executive is directed to enter this

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Order, forward copies to the United States Attorneys’ Office and

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Defendant/Petitioner at his prison address, and close the file.

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DATED this 1st day of June, 2015.

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s/Robert H. Whaley
ROBERT H. WHALEY
Senior United States District Judge

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ORDER LIFTING STAY AND DENYING MOTION TO VACATE
SENTENCE ~ 3