Armstrong v. USA

Filing 6

ORDER denying Motion to Vacate under 28 U.S.C. 2255. Signed by Judge Howard D. McKibben on 6/26/2017. (Copies have been distributed pursuant to the NEF - KR)

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1 2 3 4 5 6 7 8 9 10 11 12 UNITED STATES DISTRICT COURT 13 DISTRICT OF NEVADA 14 15 16 17 18 19 UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) vs. ) ) WILLIAM EDWARD ARMSTRONG, ) ) Defendant. ) _________________________________ ) 3:06-cr-00073-HDM 3:16-cv-00073-HDM ORDER 20 On February 16, 2016, defendant filed a motion to vacate, set 21 aside or correct sentence pursuant to 28 U.S.C. § 2255 (ECF No. 22 32). On March 14, 2016, the government filed a response (ECF No. 23 36), and on March 21, 2016, the defendant filed a reply (ECF No. 24 37). On March 23, 2016, and June 3, 2016, the court stayed 25 proceedings pending decisions by the Supreme Court and Ninth 26 Circuit Court of Appeals (ECF Nos. 38 & 39). 27 the court lifted the stay (ECF No. 40). 28 1 On August 3, 2016, 1 On September 9, 2016, defendant filed an “Emergency Motion for 2 Status Conference” (ECF No. 41). 3 September 28, 2016, the court indicated that it was inclined to 4 further stay proceedings pending the Supreme Court’s decision in 5 Beckles v. United States, No. 15-8544. 6 stay would not be prejudicial because even on the merits defendant 7 likely was not entitled to § 2255 relief. 8 stay and asked the court to proceed to decide his case on the 9 merits. 10 At a status conference on The court indicated that a Defendant opposed the (See ECF No. 44). On March 6, 2017, the court ordered the defendant to show 11 cause why Beckles did not require the court to deny his motion. 12 April 20, 2017, defendant filed a motion for voluntary dismissal of 13 his § 2255 motion pursuant to Federal Rule of Civil Procedure 14 41(a)(2) (ECF No. 48). 15 April 21, 2017, but vacated its order after the government filed a 16 motion to reconsider (ECF No. 50). 17 motion to reconsider (ECF No. 53), and the government has replied 18 (ECF No. 55). 19 On The court initially granted the motion on Defendant has responded to the While the parties disagree on the applicability of Rule 41(a) 20 to § 2255 proceedings, the court need not decide the issue. 21 assuming Rule 41(a)(2) can be applied, it is within the court’s 22 discretion whether to grant a dismissal under that rule. 23 R. Civ. P. 41(a)(2) (“[A]n action may be dismissed at the 24 plaintiff’s request only by court order, on terms that the court 25 considers proper.”); Stevedoring Servs. of Am. v. Armilla Int’l 26 B.V., 889 F.2d 919, 921 (9th Cir. 1989) (“[A] motion for voluntary 27 dismissal under Rule 41(a)(2) is addressed to the district court’s 28 sound discretion . . . .”). Even See Fed. “The purpose of the rule is to permit 2 1 a plaintiff to dismiss an action without prejudice so long as the 2 defendant will not be prejudiced, or unfairly affected by 3 dismissal.” 4 that, under the circumstances of this case, the government would be 5 unfairly affected by a dismissal of defendant’s petition without 6 prejudice. 7 defendant’s motion, but defendant sought a resolution of his motion 8 well before the Supreme Court’s decision in Beckles – even after 9 the court had indicated it would likely be denied. Id. (internal citations omitted). The court concludes Not only was the government required to respond to If the court 10 had proceeded as defendant then wished, and the motion had been 11 denied, defendant would not have been able to file any second or 12 successive motion – and the government would not be required to 13 respond to any such motion – unless defendant first received 14 authorization from the Court of Appeals. 15 voluntary dismissal at this juncture, however, the government may 16 have to relitigate whether any future motions filed by defendant 17 are subject to the second or successive limitation of 28 U.S.C. § 18 2255(h). 19 defendant’s motion on its merits now and therefore DENIES the 20 motion for voluntary dismissal. 21 reconsider is accordingly GRANTED. 22 If the court allows The court therefore concludes it should decide The government’s motion to In his § 2255 motion, defendant seeks relief based on Johnson 23 v. United States, 135 S. Ct. 2551 (2015). 24 Court held that the residual clause in the ACCA’s definition of 25 “violent felony” is unconstitutionally vague. 26 charged or sentenced under the ACCA. 27 career offender under U.S.S.G. § 4B1.1. 28 qualifies as a career offender if: 3 In Johnson, the Supreme Defendant was not Rather, he was found to be a Under § 4B1.1, a defendant 1 (1) the defendant was at least eighteen years old at the 2 time the defendant committed the instant offense of 3 conviction; (2) the instant offense of conviction is a 4 felony that is either a crime of violence or a controlled 5 substance offense; and (3) the defendant has at least two 6 prior felony convictions of either a crime of violence or 7 a controlled substance offense. 8 At sentencing, the court determined that defendant qualified as a 9 career offender because he had two prior crimes of violence and his 10 instant offense was a crime of violence. 11 same: bank robbery in violation of 18 U.S.C. § 2113(a). 12 definition of “crime of violence” for purposes of the career 13 offender guideline includes a residual clause that is identical to 14 that in the ACCA. 15 Johnson invalidated this residual clause, that bank robbery in 16 violation of § 2113(a) qualified as a “crime of violence” only 17 under the residual clause, and that he is therefore entitled to 18 relief. 19 All three crimes were the See U.S.S.G. § 4B1.2(a). The Defendant argued that On March 6, 2017, the United States Supreme Court determined 20 that Johnson does not apply to the Guidelines. 21 States, 580 U.S. — , 137 S. Ct. 886 (Mar. 6, 2017). 22 claim for relief depends on Johnson applying to the Guidelines and 23 the Supreme Court has held Johnson does not apply to the 24 Guidelines, defendant is not entitled to any relief. 25 2255 motion (ECF No. 32) therefore must be and hereby is DENIED. 26 The standard for issuance of a certificate of appealability Beckles v. United As defendant’s Defendant’s § 27 calls for a “substantial showing of the denial of a constitutional 28 right.” 28 U.S.C. § 2253(c). The Supreme Court has interpreted 28 4 1 2 3 4 5 6 7 8 9 10 11 12 U.S.C. § 2253(c) as follows: Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy §2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong. The issue becomes somewhat more complicated where, as here, the district court dismisses the petition based on procedural grounds. We hold as follows: When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. 13 Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also James v. 14 Giles, 221 F.3d 1074, 1077-79 (9th Cir. 2000). 15 further illuminated the standard for issuance of a certificate of 16 appealability in Miller-El v. Cockrell, 537 U.S. 322 (2003). 17 Court stated in that case: 18 19 20 21 22 23 24 25 26 27 28 The Supreme Court The We do not require petitioner to prove, before the issuance of a COA, that some jurists would grant the petition for habeas corpus. Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail. As we stated in Slack, “[w]here a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El, 537 U.S. at 338 (quoting Slack, 529 U.S. at 484). The court has considered the issues raised by defendant with respect to whether they satisfy the standard for issuance of a 5 1 certificate of appeal and determines that none meet that standard. 2 The court will therefore deny defendant a certificate of 3 appealability. 4 In accordance with the foregoing, the government’s motion to 5 reconsider (ECF No. 50) is GRANTED. 6 voluntary dismissal (ECF No. 48) and his motion pursuant to § 2255 7 (ECF No. 32) are DENIED. 8 certificate of appealability. 9 10 The defendant’s motion for The court further denies defendant a IT IS SO ORDERED. DATED: This 26th day of June, 2017. 11 12 ____________________________ UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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