Jimenez v. USA

Filing 18

Order denying 1 Petitioner's Motion to Vacate/Set Aside/Correct Sentence (2255) and 15 Petitioner's Motion to dismiss case. The Court declines to issue a certificate of appealability. The Government's Motion to lift stay and Deny Pending 28 U.S.C. § 2255 Motion on the Merits 16 is granted. Signed on 5/24/17 by Chief District Judge Greg Kays. (Strodtman, Tracy)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
JERRY JIMENEZ,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:16-CV-00609-DGK
(Crim. No. 4:13-CR-00141-DGK-1)

ORDER DENYING MOTION TO CORRECT SENTENCE
Petitioner Jerry Jimenez (“Petitioner”) pled guilty to one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and the Court
sentenced him to 69 months’ imprisonment.
Now before the Court are Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence
(Doc. 1) under 28 U.S.C. § 2255, Petitioner’s Motion to Dismiss Petition Without Prejudice
(Doc. 15), and the Government’s Motion to Lift Stay and Deny Pending 28 U.S.C. § 2255
Motion on the Merits (Doc. 16). Because the Supreme Court recently rejected Petitioner’s
argument in Beckles v. United States, 137 S. Ct. 886 (2017), his § 2255 motion and motion to
dismiss without prejudice are DENIED. The Government’s motion to deny Petitioner’s § 2255
motion is GRANTED.
Background1
On September 5, 2013, Petitioner pled guilty, without a written plea agreement, to one
count of being a felon in possession of a firearm. On April 1, 2014, the Court sentenced him to
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The facts in this section derive from: (1) the criminal case record; and (2) the allegations in Petitioner’s motion,
taken as true except where they contradict the record. Because the facts in this light do not entitle Petitioner to
relief, the Court denies him an evidentiary hearing and rules on the facts in the record. See Thomas v. United States,
737 F.3d 1202, 1206 (8th Cir. 2013) (citing 28 U.S.C. § 2255(b)); Rules Governing Section 2255 Proceedings, Rule
8(a).

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69 months’ imprisonment under the United States Sentencing Guidelines (the “Guidelines”). In
calculating Petitioner’s Guidelines range, the Court found he was eligible for an enhanced base
offense level because he had a prior conviction that qualified as a “crime of violence.”
Specifically, the Court adopted the Presentence Investigation Report (“PSR”) finding that
Petitioner’s prior Missouri conviction for resisting arrest by fleeing qualified him for an
enhancement under Guidelines § 2K2.1(a)(4)(A). PSR ¶¶ 9, 26 (Crim. Doc. 35). This resulted
in a Guidelines sentencing range of 57 to 71 months’ imprisonment. Id. ¶¶ 58, 59. Petitioner
appealed, and the Eighth Circuit Court of Appeals affirmed his sentence on November 18, 2014.
United States v. Jimenez, 583 F. App’x 569 (8th Cir. 2014).
The window to file a petition for a writ of certiorari with the Supreme Court elapsed in
February 2015. Sup. Ct. R. 13 (“[A] petition for a writ of certiorari to review a judgment in any
case, civil or criminal, entered by . . . a United States court of appeals . . . is timely when it is
filed with the Clerk of this Court within 90 days after the entry of the judgment.”).
Petitioner filed the instant § 2255 motion on June 15, 2016. The Court withheld ruling
while awaiting the Supreme Court’s opinion in Beckles. That decision was handed down on
March 6, 2017.
Discussion
I.

The Court will not dismiss Petitioner’s § 2255 motion without prejudice, and will
consider the merits of his motion.
The Court first addresses Petitioner’s motion to dismiss this matter without prejudice so

he may file another motion pursuant to § 2255 without it being considered a second or successive
petition requiring the permission of the Eighth Circuit to proceed (Doc. 15). The Government
opposes this motion, arguing the Court “should not allow a state or federal prisoner to voluntarily
dismiss a post-conviction motion to avoid application of an impending or recently issued adverse
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decision.” Gov’t Mot. at 3 (Doc. 16). Even if dismissing this motion without prejudice could
allow Petitioner to file another § 2255 motion without permission from the Eighth Circuit, cf.
Felder v. McVicar, 113 F.3d 696, 698 (7th Cir. 1997) (“[A] petitioner for habeas corpus cannot
be permitted to thwart the limitations on the filing of second or successive motions by
withdrawing his first petition as soon as it becomes evident that the district court is going to
dismiss it on the merits.”); Thai v. United States, 391 F.3d 491, 495 (2d Cir. 2004) (“[I]f a
petitioner clearly concedes upon withdrawal of a § 2255 petition that the petition lacks merit, the
withdrawal is akin to a dismissal on the merits and subsequent petitions will count as successive .
. . .”), the Court will not acquiesce in this sort of gamesmanship. Petitioner’s motion to dismiss
without prejudice is denied, and the Court will consider the merits of his § 2255 motion.
II.

Petitioner’s enhanced base level sentence did not deprive him of due process.
A district court may vacate a sentence if it “was imposed in violation of the Constitution

or laws of the United States.” 28 U.S.C. § 2255(a). A § 2255 motion “is not a substitute for a
direct appeal, and is not the proper way to complain about simple . . . errors.” Anderson v.
United States, 25 F.3d 704, 706 (8th Cir. 1994) (internal citation omitted).
Petitioner argues his prior conviction for resisting arrest by fleeing no longer qualifies as
a crime of violence in the wake of Johnson v. United States, 135 S. Ct. 2551 (2015), the Supreme
Court decision invalidating the Armed Career Criminal Act’s (“ACCA”) residual clause, 18
U.S.C. § 924(e)(2)(B)(ii).

Petitioner contends that under Johnson, the Court’s Guidelines

calculation violated due process.
This argument is without merit. Petitioner was not sentenced under the ACCA, but
instead under a similarly-worded provision in the Guidelines. See U.S.S.G. § 4B1.2. The
Guidelines are not subject to a void-for-vagueness challenge under the Due Process Clause like

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the ACCA’s residual clause was in Johnson. Beckles, 137 S. Ct. at 896. Unlike the ACCA, the
Guidelines do not fix the permissible statutory range of punishment. Id. at 894. Instead, they
merely guide the exercise of a sentencing court’s discretion in choosing an appropriate sentence
within the permissible range. Id. Petitioner was not sentenced in excess of the statutory 10-year
maximum.
Because his claim is based on the same vagueness challenge the Supreme Court rejected
in Beckles, it is denied.2 Any other grounds for relief are time-barred. 28 U.S.C. § 2255(f) (“A
1-year period of limitation shall apply to [§ 2255 motions]. The limitation period shall run from
the latest of . . . the date on which the judgment of conviction becomes final; [or] the date on
which the right asserted was initially recognized by the Supreme Court, if that right has been
newly recognized by the Supreme Court and made retroactively applicable to cases on collateral
review . . . .”).
Conclusion
For these reasons, Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence (Doc. 1)
and Motion to Dismiss Case Without Prejudice (Doc. 15) are DENIED, and the Court declines to
issue a certificate of appealability. The Government’s Motion to Lift Stay and Deny Pending 28
U.S.C. § 2255 Motion on the Merits (Doc. 16) is GRANTED.
IT IS SO ORDERED.
Date: May 24, 2017

/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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Indeed, Petitioner admitted that “[i]f Beckles holds that Johnson is not retroactively applicable to guidelines cases
on collateral review, [his] case would necessarily be terminated.” Pet.’s Mot. to Stay at 2 (Doc. 5). Here, there is
nothing to be applied retroactively because the Supreme Court held that the Guidelines are not subject to a void-forvagueness challenge. Beckles, 137 S. Ct. 886.

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