Johnson v. United States of America

Filing 37

MEMORANDUM OPINION AND ORDER by District Judge Martha Vazquez ADOPTING 30 REPORT AND RECOMMENDATIONS; and DENYING 26 MOTION to Amend/Correct. IT IS THEREFORE ORDERED that Judge Garza's Proposed Findings and Recommended Disposition, (CV Doc. 30 ), should BE ADOPTED. Petitioner's Motion to Amend, (CV Doc. 26 ), which the Court has construed as a motion to reconsider, will be DENIED. (gr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ERIC LAMONT JOHNSON,
Defendant-Petitioner,
No. CV 16-00548 MV/CG
No. CR 03-00477 MV

v.
UNITED STATES OF AMERICA,
Plaintiff-Respondent.

MEMORANDUM OPINION AND ORDER ADOPTING MAGISTRATE JUDGE’S
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on United States Magistrate Judge Carmen E.
Garza’s Proposed Findings and Recommended Disposition (the “PFRD”), (CV Doc. 30),
filed June 27, 2017; Petitioner Eric Lamont Johnson’s Objections to Magistrate PF&RD
(the “Objections”), (CV Doc. 32), filed July 10, 2017; Petitioner’s Writ of Mandamus (the
“Petition”), (CV Doc. 34), filed June 30, 2017; and Petitioner’s Motion to Supplement
(the “Supplement”), (CV Doc. 35), filed July 10, 2017.1 In the PFRD, Judge Garza
construed Petitioner’s Motion to Amend (the “Motion”), (CV Doc. 26), filed May 1, 2017,
as a motion to reconsider under Fed. R. Civ. P. Rule 59(e) and recommended denying
the Motion. (CV Doc. 30 at 2-4).
The parties were notified that written objections to the PFRD were due within 14
days. (CV Doc. 30 at 4). Petitioner responded by filing his Objections, the Writ, and the
Supplement. Respondent did not object or respond to any of Petitioner’s filings. After a
de novo review of the record and the PFRD, the Court will adopt the Magistrate Judge’s
PFRD, overrule Petitioner’s Objections, and deny Petitioner’s Motion.

1

Documents referenced as “CV Doc. ____” are from case number CV 16-00548 MV/CG. Documents
referenced as “CR Doc. ____” are from case number CR 03-00477 MV.

I.

Background
On October 21, 2004, Petitioner pled guilty to possessing a firearm during and in

relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). (CR Doc.
144). Petitioner qualified as a career offender under the United States Sentencing
Guidelines (“U.S.S.G.” or “Guidelines”) based on prior convictions for crimes of
violence. (CR Doc. 235 at 3). Specifically, the Court found Petitioner’s convictions for
voluntary manslaughter and being a prisoner in possession of a weapon qualified as
crimes of violence under the residual clause in Guidelines § 4B1.2(a)(2), which defined
a crime of violence as any crime that “involves conduct that presents a serious potential
risk of physical injury to another.” (CR Doc. 235 at 3); U.S.S.G. § 4B1.2(a)(2) (2008).
Because of Petitioner’s career offender status, his Guideline sentence range was 360
months to life imprisonment. (CR Doc. 246 at 7, 10, 29, 32-33). Ultimately, Petitioner
received a 180 month sentence. (CR Doc. 246 at 37, 40).
On June 9, 2016, Petitioner filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence by a Person in Federal Custody (the “Motion under §
2255”), (CV Doc. 1), arguing he was unconstitutionally sentenced following the
Supreme Court of the United States’ ruling in Johnson v. United States, 135 S. Ct. 2551
(2015). (CV Doc. 9 at 3-5). In Johnson, the Supreme Court held that the residual clause
in the Armed Career Criminal Act (“ACCA”) was unconstitutionally vague and may not
be used to increase a defendant’s sentence. 135 S. Ct. at 2557. Petitioner argued that,
under Johnson, the residual clause in the Guidelines was also unconstitutionally vague;
therefore, he argued, his sentence is unconstitutional. (CV Doc. 9 at 8).

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On March 6, 2017, the Supreme Court of the United States decided Beckles v.
United States, 137 S. Ct. 886 (2017), holding that the Guidelines are not subject to
vagueness challenges and that the residual clause in § 4B1.2 is not unconstitutionally
vague. 137 S. Ct. at 891-92. Specifically, the Court reasoned that “[b]ecause they
merely guide the district courts’ discretion, the Guidelines are not amenable to a
vagueness challenge.” Id. at 894. Thus, Johnson is inapplicable to the Guidelines. Id. at
892 n.2. Accordingly, on April 27, 2017, the Court denied Petitioner’s Motion under §
2255. (CV Doc. 24).
Four days after the Court entered judgment, Petitioner filed the instant Motion.
(CV Doc. 26). In the Motion, Petitioner states he wishes to amend the pleadings to
reflect the Supreme Court’s ruling in Mathis v. United States, 136 S. Ct. 2243 (2016).
(CV Doc. 26 at 2). Petitioner argues that because the ACCA and Guidelines should be
interpreted similarly, his convictions for being a prisoner in possession of a weapon are
no longer crimes of violence. Id. at 2-3. Petitioner “continues to contend that he is
actually innocent of the career offender application.” Id. at 2.
Because Petitioner did not seek to amend his Motion under § 2255, and given
how soon after judgment Petitioner filed the Motion, the Magistrate Judge construed
Petitioner’s Motion as a motion for reconsideration under Fed. R. Civ. P. Rule 59(e).
(CV Doc. 30 at 2-3). The Magistrate Judge explained that motions to reconsider are
typically granted on three grounds: (1) to account for an intervening change in
controlling law; (2) to consider new, previously unavailable evidence; and (3) to correct
clear error or manifest injustice. (CV Doc. 30 at 3). The Magistrate Judge found the

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Mathis decision did not fit into any of these three categories; therefore she
recommended Petitioner’s Motion be denied. Id. at 4.
Three days after the PFRD was filed, Petitioner filed a petition for a writ of
mandamus. (CV Doc. 34). In the Petition, Petitioner argues his prior conviction for
voluntary manslaughter in California is not a crime of violence. (CV Doc. 34 at 2); see
(CR Doc. 246 at 12; 32-33). Petitioner references his Motion and states he has no
alternative for relief except a writ of mandamus. (CV Doc. 34 at 3).
Petitioner then timely objected to the PFRD. (CV Doc. 32). Petitioner reiterated
that his underlying claim is based on Johnson and Welch v. United States, 136 S. Ct.
1257 (2016), in which the Supreme Court held Johnson applied retroactively to cases
on collateral review. (CV Doc. 32 at 2). Further, Petitioner argues his case is
distinguishable from Beckles because in Beckles, the defendant’s crime of violence was
listed as a crime of violence in the Guidelines’ commentary. Id. at 2-3; see Beckles, 137
S. Ct. at 891. Petitioner again claims that the analysis of whether a crime is a crime of
violence is the same under the ACCA and Guidelines; therefore he is not a career
offender. (CV Doc. 5-7).
Finally, Petitioner filed a Motion to Supplement his Motion. (CV Doc. 35 at 1). In
this Supplement, Petitioner represents that his Motion alleges ineffective assistance of
counsel that resulted in him being illegally sentenced as a career offender, and that he
wishes to supplement the Motion with more authority. Id. at 1. Petitioner argues a
meritorious claim of ineffective assistance of counsel overcomes a procedural bar. Id. at
2 (citing U.S. v. Harms, 371 F.3d 1208, 1211 (10th Cir. 2004)). Finally, Petitioner cites
Quijada-Aguilar v. Lynch, 799 F.3d 1303 (9th Cir. 2015), for the proposition that

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California voluntary manslaughter is not categorically a crime of violence. Id. at 3. The
Court considers the Objections, Petition, and Supplement collectively as Petitioner’s
objections to the Magistrate Judge’s PFRD.
II.

Analysis
Pursuant to Rule 8 of the Rules Governing Section 2255 Proceedings for the

United States District Courts, a district judge may, under 28 U.S.C. § 636(b), refer a
pretrial dispositive motion to a magistrate judge for proposed findings of fact and
recommendations for disposition. Within fourteen days of being served, a party may file
objections to this recommendation. Rule 8(b) of the Rules Governing Section 2255
Proceedings for the United States District Courts. A party may respond to another
party’s objections within fourteen days of being served with a copy; the rule does not
provide for a reply. FED. R. CIV. P. 72(b).2
When resolving objections to a magistrate judge’s recommendation, the district
judge must make a de novo determination regarding any part of the recommendation to
which a party has properly objected. 28 U.S.C. § 636(b)(1)(C). Filing objections that
address the primary issues in the case “advances the interests that underlie the
Magistrate’s Act, including judicial efficiency.” U.S. v. One Parcel of Real Prop., With
Bldgs., Appurtenances, Improvements, & Contents, 73 F.3d 1057, 1059 (10th Cir.
1996). Objections must be timely and specific to preserve an issue for de novo review
by the district court or for appellate review. Id. at 1060. Additionally, issues “raised for
the first time in objections to the magistrate judge’s recommendation are deemed
waived.” Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996); see also U.S. v.
2

The Federal Rules of Civil Procedure may be applied to the extent that they are not inconsistent with any
statutory provisions or the Rules Governing Section 2255 Proceedings. Rule 12 of the Rules Governing
Section 2255 Proceedings for the United States District Courts.

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Garfinkle, 261 F.3d 1030, 1030-31 (10th Cir. 2001) (“In this circuit, theories raised for
the first time in objections to the magistrate judge’s report are deemed waived.”).
“Grounds warranting a motion to reconsider include (1) an intervening change in
the controlling law, (2) new evidence previously unavailable, and (3) the need to correct
clear error or prevent manifest injustice.” Servants of Paraclete v. Doe, 204 F.3d 1005,
1012 (10th Cir. 2000) (citation omitted). In other words, “a motion for reconsideration is
appropriate where the court has misapprehended the facts, a party’s position, or the
controlling law.” Id. Liberally construed, Petitioner argues that the Court
misapprehended the controlling law and that his sentence is clearly erroneous and
manifestly unjust.3
In his objections, Petitioner maintains that because analysis of whether a crime is
a crime of violence is the same under the ACCA and the Guidelines, both residual
clauses must be void for vagueness; therefore he is no longer a career offender
following Johnson. Although Petitioner is correct that the residual clauses in the ACCA
and Guidelines were “consistently interpreted identically,” United States v. Thomas, 643
F.3d 802, 805 (10th Cir. 2011), that similarity did not extend to whether they are both
void for vagueness. In Johnson, the Supreme Court held that the residual clause in the
ACCA was void for vagueness and cannot be used to impose an increased sentence.
135 S. Ct. at 2557. But in Beckles, the Supreme Court held that the residual clause in
the Guidelines is not void for vagueness, therefore it may be used to impose an
enhanced sentence. 137 S. Ct. at 895. Petitioner was sentenced in reliance on the
residual clause in the Guidelines, not the ACCA. See (CR Doc. 235). Thus, because

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Because Petitioner proceeds pro se, the Court must liberally construe his pleadings. Northington v.
Jackson, 973 F.3d 1518, 1520-21 (10th Cir. 1992); Hall v. Belmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

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Petitioner was sentenced in reliance on the Guidelines’ residual clause, which is not
unconstitutionally vague, he may still be classified as a career offender and his
sentence is not unconstitutional.
Petitioner’s subsequent citations to Mathis and Welch (which were both decided
before Beckles) do not change the controlling law or show that the Court
misapprehended the law. In Mathis, the Supreme Court clarified the difference between
“elements” and “means” while conducting the categorical analysis and held that burglary
in Iowa does not fit the generic federal definition of “burglary.” 136 S. Ct. at 2251-54,
2256-57. Mathis did not discuss the Guidelines or the residual clause in § 4B1.2. In
Welch, the Supreme Court held that Johnson announced a substantive rule and was
therefore retroactively applicable to cases on collateral review. 136 S. Ct. 1264-65.
However, Johnson does not apply to the Guidelines. Beckles, 137 S. Ct. at 895. Thus,
Petitioner has not established that the Court misapprehended the law, that there has
been an intervening change in controlling law, or that his sentence is erroneous or
unjust. Accordingly, Petitioner is not entitled to reconsideration.
To the extent Petitioner raises new theories in his objections to the PFRD,
Petitioner has waived those arguments. Liberally construed, Petitioner argues that
voluntary manslaughter in California is not a crime of violence because it may be
committed with reckless intent; that his case is distinguishable from Beckles because
being a prisoner in possession of a weapon was not listed in the Commentary to the
Guidelines; and that he received ineffective assistance of counsel. See (CV Docs. 32,
34, 35). Petitioner did not previously argue these grounds, either in his Motion to Amend
or underlying Motion under § 2255; consequently, Petitioner waived these arguments.

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Garfinkle, 261 F.3d at 1030-31 (“In this circuit, theories raised for the first time in
objections to the magistrate judge’s report are deemed waived.”).
Moreover, Petitioner is not entitled to relief on his new theories. First, Petitioner is
correct that the Ninth Circuit has held that California voluntary manslaughter is not a
crime of violence because it may be committed with reckless intent. Quijada-Aguilar v.
Lynch, 799 F.3d 1303, 1306-07 (9th Cir. 2015). However, the Tenth Circuit held that
crimes of violence may be committed with reckless intent. See U.S. v. Hammons, 862
F.3d 1052 (10th Cir. 2017); U.S. v. Pam, No. 16-2171, __ F.3d __, 2017 WL 3481853
(10th Cir. Aug. 15, 2017). Thus, California voluntary manslaughter is still considered a
crime of violence in the Tenth Circuit even if it may be committed with reckless intent.
Second, Petitioner is again correct that Beckles involved a crime of violence that
was listed in the Commentary to the Guidelines. Beckles, 137 S. Ct. at 891. In Beckles,
Justice Ginsburg, concurring in the judgment, would have held that the Guidelines were
not vague as applied to the defendant because his crime was listed. Id. at 897-98
(Ginsburg, J., concurring in the judgment). But the fact that the crime was listed in the
Commentary was not the determinative factor for the majority. Rather, the majority held
that because the advisory Guidelines “do not fix the permissible range of sentences”
and “merely guide the exercise of a court’s discretion,” the residual clause in § 4B1.2 is
not void for vagueness. Id. at 892. The majority did not rest its holding on the fact that
the defendant’s crime was listed in the Commentary. So, although Petitioner’s case is
distinguishable from Beckles, it is ultimately a distinction without a difference.
Finally, in his Supplement, Petitioner states he wishes to supplement his Motion
with points and authority and alleges he has raised an ineffective assistance of counsel

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claim. (CV Doc. 35 at 2-3). Contrary to his assertion, Petitioner has not raised an
ineffective assistance of counsel claim in either his Motion to Amend or Motion under §
2255. See (CV Docs. 1, 9, 26). The Court notes Petitioner has filed a different motion
under § 2255 in which he alleges ineffective assistance of counsel relating to his career
offender enhancement. (CR Doc. 373). Regardless, to the extent Petitioner discusses
ineffective assistance of counsel, that discussion does not adequately state a claim
under Strickland v. Washington, 466 U.S. 668 (1987). In order to state a claim for
ineffective assistance of counsel, Petitioner must show counsel’s deficient performance
and how that deficient performance prejudiced him. Strickland, 466 U.S. at 687.
Petitioner did not satisfy either requirement; he only mentioned ineffective assistance of
counsel and quotes cases regarding ineffective assistance, the categorical approach,
and California voluntary manslaughter. (CV Doc. 35 at 2-3). The Supplement therefore
does not support reconsidering the Court’s prior ruling.
III.

Conclusion
For the foregoing reasons, the Court finds that Petitioner is not entitled to

reconsideration of denial of his Motion under § 2255.
IT IS THEREFORE ORDERED that Judge Garza’s Proposed Findings and
Recommended Disposition, (CV Doc. 30), should BE ADOPTED. Petitioner’s Motion to
Amend, (CV Doc. 26), which the Court has construed as a motion to reconsider, will be
DENIED.

___________________________________
MARTHA VÁZQUEZ
UNITED STATES DISTRICT JUDGE

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