Zamora v. United States of America
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION by Magistrate Judge Gregory B. Wormuth recommending dismissal for lack of jurisdiction of 1 Motion to Vacate/Set Aside/Correct Sentence (2255 under Johnson v. USA) filed by Raul Zamora. Objections to R&R due by 7/13/2017. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (km)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
No. CV 16‐695‐JCH‐GBW
UNITED STATES OF AMERICA,
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
This matter is before me on Petitioner’s Emergency Motion to Vacate and Correct
Sentence Pursuant to 28 U.S.C. § 2255 (doc. 1).1 Having reviewed the initial and
supplemental briefing on Petitioner’s Motion (docs. 3, 6, 9, 10, 12, 13, 14) and being fully
advised, I recommend Petitioner’s Motion be denied as untimely.
On July 21, 1998, following a jury trial, Petitioner was convicted of Attempted
Armed Bank Robbery in violation of 18 U.S.C. § 2113(a) and (d), as charged in Count I
of the two‐count first superseding indictment.2 Cr. docs. 60, 94. Prior to sentencing, the
United States Probation Office prepared a presentence report (PSR). The pertinent
Citations to “doc.” refer to docket numbers filed in Case No. 16‐CV‐695‐JCH‐GBW. Citations to “cr. doc.”
refer to the attendant criminal docket, Case No. 97‐CR‐488‐JCH. For filings made on both dockets, only
the civil docket number is given.
2 Prior to the filing of the superseding indictment, Petitioner entered into a plea agreement to plead guilty
to a superseding information. Cr. docs. 46, 47, 48. The plea agreement stipulated to a sentence of 132
months of imprisonment, but Petitioner later withdrew his guilty plea and proceeded to trial. See cr. docs.
47, 54, 55, 56.
factual basis underlying Petitioner’s Attempted Armed Bank Robbery conviction is as
follows: on July 9, 1997, Petitioner’s co‐defendant Joseph Gutierrez attempted to rob a
credit union in Santa Fe, New Mexico. PSR ¶ 9. Gutierrez approached a bank teller
with a gift‐wrapped package and handed her a demand note stating that the package
contained a bomb, but abandoned the attempt when the teller was unable to retrieve
any money. Id. It was later determined by FBI investigators that Petitioner wrote the
demand note and drove the getaway vehicle involved in the crime. PSR ¶¶ 11, 12, 15.
As reflected in the PSR, the base offense level for Petitioner’s crime of Attempted
Armed Bank Robbery was 25 and Petitioner’s criminal history category was V. PSR ¶
63. Therefore, the applicable sentencing range under the guidelines would ordinarily
have been 100‐125 months. Id. However, Petitioner was classified as a career offender
pursuant to U.S.S.G. § 4B1.1, which increased the applicable mandatory sentencing
range. PSR ¶¶ 35, 64. Specifically, the PSR classified Petitioner as a career offender on
the basis that both the instant offense of attempted armed bank robbery as well as three
of Petitioner’s prior convictions constituted “crimes of violence” under the definition
found in U.S.S.G. § 4B1.2(a)(2),3 thus triggering the sentencing enhancement.4 PSR ¶¶
35, 64. At the time of Petitioner’s sentencing, the guidelines defined “crime of violence”
This provision was amended on August 1, 2016. The amendment deleted the residual clause discussed
herein from the definition of “crime of violence.” The remainder of the definition remained the same.
Because it is the relevant provision, citations to U.S.S.G. § 4B1.2(a)(2) refer to the pre‐2016 amendment
4 The predicate convictions also satisfied the additional requirements of U.S.S.G. § 4B1.1(c).
[A]ny offense under federal or state law, punishable by imprisonment for
a term exceeding one year, that—
(1) has as an element the use, attempted use, or threatened use of physical
force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of
physical injury to another.
U.S.S.G. § 4B1.2(a) (1997).
The three prior convictions listed in the PSR as “crimes of violence” underlying
the application of the career offender enhancement included: (1) a 1988 conviction for
Attempt to Commit Aggravated Assault with a Deadly Weapon; (2) a 1991 conviction
for False Imprisonment; and (3) a 1992 conviction for False Imprisonment, Aggravated
Assault, and Robbery. PSR ¶ 64. As the statutory maximum for the instant offense of
attempted armed bank robbery was 25 years, Petitioner’s base offense level was
adjusted to 34 and his criminal history category adjusted to VI pursuant to the career
offender provision. PSR ¶ 64; see also U.S.S.G. § 4B1.1(b). Accordingly, the mandatory
applicable guideline sentencing range for his offense increased to 262‐327 months. PSR
Petitioner made several objections to the PSR, including that his 1988 conviction
was a misdemeanor rather than a felony. See cr. doc. 100 at 3. This objection was found
to have merit, and the PSR was accordingly revised to reflect that Petitioner had only
two prior felony convictions constituting crimes of violence—namely, the 1991 and 1992
offenses discussed above. Doc. 9 at 3; see also cr. doc. 101 at 5, cr. doc. 142 at 10.
However, this amendment to the PSR did not alter Petitioner’s classification as a career
offender under the guidelines, as the relevant provision requires only two prior “crime
of violence” convictions to trigger its application. See U.S.S.G. § 4B1.1(a). The
applicable mandatory guideline sentencing range of 262‐327 months of imprisonment
therefore remained the same notwithstanding the revision to the PSR. See cr. doc. 142 at
During the sentencing phase of his case, Petitioner’s counsel sought a downward
departure from this sentencing range on a number of asserted grounds. However, the
request for downward departure was denied and Petitioner was sentenced to 262
months of imprisonment followed by a three‐year period of supervised release. See cr.
docs. 102, 142 at 10, 13.
Petitioner’s Motion argues that the offenses of false imprisonment and robbery
under New Mexico law are no longer crimes of violence in light of United States v.
Johnson, 135 S. Ct. 2551 (2015). Doc. 1 at 14‐15, 23‐24.5 Consequently, Petitioner argues
that his sentence was unconstitutionally enhanced under the career offender provision,
and he is thus entitled to resentencing as a matter of due process. Id. at 1‐14, 24‐26.
Petitioner contends that the Johnson decision should be applied retroactively to nullify
the application of the career offender enhancement to his sentence and to adjust the
Petitioner also argues in his Motion that his 1988 attempt to commit aggravated assault is no longer a
crime of violence. Doc. 1 at 15‐23. However, this offense ultimately did not underlie the application of
the career offender enhancement to Petitioner’s sentence, and the United States is in accord with
Petitioner that this offense does not constitute a “crime of violence” under the guidelines. See generally
doc. 9; see also cr. doc. 101 at 5. Therefore, this argument need not be addressed further.
sentencing guideline range for his Attempted Armed Bank Robbery offense to 100‐125
months. Id. at 1‐2, 24‐26. The United States argues that (1) Johnson is inapposite to
Petitioner’s sentence, which was enhanced under the guidelines rather than the statute
at issue in Johnson (see doc. 3 at 2‐4); (2) a rule extending Johnson to guidelines cases
would not retroactively apply to Petitioner’s sentence (see id. at 4‐10); and (3) as a
threshold matter, the Court does not have jurisdiction to consider this case because
Petitioner’s motion is time‐barred under 28 U.S.C. § 2255(f), and no exception applies
given that the right recognized in Johnson is not the one Petitioner asserts here as the
basis of his motion. See doc. 12 at 4‐6.6
The parties agree that Petitioner was not convicted of at least two predicate
offenses which would qualify as “crimes of violence” under either the “elements
clause” or the “enumerated offenses” clause of U.S.S.G. § 4B1.2(a)(2). See generally doc.
9. In fact, any argument to the contrary is foreclosed by the procedural history of
Petitioner’s criminal case. Specifically, Petitioner appealed his sentence to the Tenth
Circuit Court of Appeals on several grounds, including that his 1991 false
imprisonment conviction did not qualify as a “crime of violence” and that the career
offender enhancement was therefore improperly applied to his sentence. See United
The United States raised this argument for the first time in response to the Court’s Order for
Supplemental Briefing regarding the impact of Beckles on Petitioner’s motion (doc. 11).
States v. Zamora, 222 F.3d 756, 763 (10th Cir. 2000). In rejecting Petitioner’s argument,
the Tenth Circuit held that the New Mexico crime of false imprisonment qualified as a
crime of violence solely under the residual clause of U.S.S.G. § 4B.1.2(a).7 The court
Although it is possible to theorize situations where physical force would
not be used during the commission of the crime, this is not the inquiry. . . .
[I]t is enough to show that there is a substantial risk of physical injury. . . .
Given the substantial risk of violence associated with the crime of false
imprisonment, we have no trouble deciding that this crime is a crime of
violence for purposes of sentencing the defendant as a career [offender]
pursuant to U.S.S.G. § 4B1.1.
222 F.3d at 764‐65. Moreover, the court added in a footnote that a case from the
Sixth Circuit which held that false imprisonment was not a crime of violence was not
persuasive, as that court had applied the elements clause rather than the residual clause
in its analysis. See id. at 765 n.3 (citing United States v. Roberts, 986 F.2d 1026, 1034 (6th
Cir. 1993)). Thus, there can be no doubt that, absent the residual clause, Petitioner’s
1991 offense of false imprisonment would not qualify as a crime of violence under the
The question that arises, then, is twofold: (1) whether the holding in Johnson
applies to the mandatory guidelines so as to render the residual clause of U.S.S.G.
§ 4B1.1(a)(2) unconstitutional, and (2) if so, whether such a rule may be retroactively
applied to vacate Petitioner’s sentence. However, before the Court may address this
Petitioner did not argue, at the trial court or on appeal, that the residual clause was unconstitutional.
substantive question, it must resolve the jurisdictional issue raised by the United States
in its supplemental brief—namely, that Petitioner’s motion is untimely as it was not
filed within the one‐year statutory limitation period under 28 U.S.C. § 2255(f). See doc.
12 at 4‐6.
Timeliness of § 2255 Motion Generally
Under 28 U.S.C. § 2255, a prisoner in federal custody may collaterally attack his
sentence as unconstitutional or illegal by bringing a motion in the court which imposed
the sentence. 28 U.S.C. § 2255(a). However, the statute requires that such a motion be
brought within one year of the later of:
(1) the date on which the judgment of conviction becomes final; [or]
. . .
(3) 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 . . . .
Id. § 2255(f).8 Otherwise, it is time‐barred and the Court therefore has no jurisdiction to
consider it. See United States v. Blackwell, 81 F.3d 945, 947‐49 (10th Cir. 1996) (court does
not have inherent power to resentence defendant but must find that power within a
statute).9 Petitioner’s motion was filed more than a year after his judgment became
final, but less than a year after the Johnson decision. See cr. docs. 140, 112. Consequently,
The statute provides for two other potential time triggers, but they are rarely invoked and not relevant
here. See 28 U.S.C. § 2255(f)(2), (f)(4).
9 While courts do have the power to equitably toll the statutory limitation period of § 2255(f), Petitioner
does not seek equitable tolling here, nor does he assert the requisite grounds for granting it. See Yang v.
Archuleta, 525 F.3d 925, 928 (10th Cir. 2008).
for his motion to be timely, Petitioner must show that Johnson newly recognized the
right he asserts and that such right was made retroactive. In other words, Johnson must
have established that his sentence was unconstitutionally enhanced pursuant to the
residual clause of the guidelines definition of “crime of violence.” See U.S.S.G.
Johnson Did Not Recognize the Right Asserted by Petitioner
In Johnson, the Supreme Court held that the residual clause of the definition of
“violent felony” under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. §
924(e)(2)(B) – “or otherwise involves conduct that presents a serious potential risk of
physical injury to another”—is unconstitutionally vague. 135 S. Ct. at 2563. Therefore,
individuals could not be subject to the ACCA if their underlying prior convictions
qualified as “violent felonies” only under the vague residual clause. Id. The Supreme
Court announced that Johnson would apply retroactively on collateral review in Welch v.
United States, reasoning that Johnson announced a substantive new rule. 136 S. Ct. 1257,
However, Petitioner was not sentenced pursuant to the ACCA. Instead, as
described above, he received an increase to his sentencing guideline range pursuant to
the career offender guideline due to his “two prior felony convictions of either a crime
of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). The enhancement
was based on two prior convictions for “crimes of violence,” as defined in § 4B1.2(a).
See cr. docs. 102, 142 at 10. These two prior convictions included the 1991 false
imprisonment offense and the 1992 false imprisonment, aggravated assault, and
robbery offenses. See PSR ¶ 64; cr. doc. 142 at 10. Petitioner asserts that Johnson
nevertheless applies to his sentence because the definition of “crime of violence,” as
used in the career offender guideline, contains a residual clause identical to the residual
clause in the ACCA. See U.S.S.G. § 4B1.2(a)(2); 18 U.S.C. § 924(e)(2)(B)(ii). Moreover, as
explained above, Petitioner’s sentence would not have been subject to the career
offender enhancement under the guidelines absent that residual clause. Thus,
Petitioner contends that Johnson established the right he now asserts, qualifying his
petition as timely under § 2255(f)(3).
The Supreme Court recently addressed the applicability of the Johnson decision
to the United States Sentencing Guidelines in Beckles v. United States, 137 S. Ct. 886
(2017). In that opinion, the Supreme Court held that the guidelines are not subject to a
void‐for‐vagueness challenge. 137 S. Ct. at 894. However, Beckles dealt with a
vagueness challenge to the advisory sentencing guidelines, and the Court’s holding
relied extensively on the distinction between the advisory guidelines and mandatory
sentence enhancements such as those compelled by statutes like the ACCA. See id. at
892‐95. In contrast, Petitioner was sentenced in 1998, prior to the sentencing guidelines
being declared “effectively advisory.” See cr. doc. 102; see also United States v. Booker, 543
U.S. 220, 245, 258‐65 (2005). Consequently, Beckles does not necessarily bar Petitioner’s
void‐for‐vagueness attack against his sentence imposed pursuant to the pre‐Booker
mandatory guidelines. Indeed, the underlying rationale of Beckles may support the
opposite conclusion. Specifically, in deciding that Johnson does not apply to the
advisory guidelines, the Beckles majority relied heavily on the distinction between
mandatory enhancements to a defendant’s sentence—such as the fifteen‐year minimum
sentence of imprisonment compelled by the ACCA—and the optional enhancements
provided in the post‐Booker advisory sentencing guidelines. See 137 S. Ct. at 892
(“Unlike the ACCA . . . the advisory Guidelines do not fix the permissible range of
sentences. . . . Accordingly, the Guidelines are not subject to a vagueness challenge
under the Due Process Clause”). The question in a future case will be whether the
ability for sentencing judge to depart under U.S.S.G. §§ 5K2.0 et seq. prior to Booker was
sufficient for the pre‐Booker guidelines to escape vagueness challenges.
However, while the rationale of Beckles may support the argument against the
validity of the residual clause of the guidelines “crime of violence” definition prior to
Booker, it significantly undermines Petitioner’s argument that Johnson actually
recognized the right he is currently asserting. First, rather than conducting a particular
analysis of Johnson, the Beckles court focused on the antecedent question of whether the
guidelines are subject to vagueness challenges generally. See 137 S. Ct. at 892‐97, 898‐
905. The Beckles court, of course, held that, at least for defendants sentenced under an
advisory sentencing guideline regime, they are not. Id. at 895. Notably, the Beckles
court affirmed the judgment of the Eleventh Circuit, which, as quoted uncritically by
the Supreme Court, had held that, “Johnson says and decided nothing about career‐
offender enhancements under the Sentencing Guidelines[.]” Id. at 891 (quoting Beckles
v. United States, 616 F. App’x 415, 416 (11th Cir. 2015) (per curiam)). Given the Court’s
apparent agreement with this assessment of Johnson, it is difficult to conclude that
Johnson recognized the Petitioner’s right not to have the career offender enhancement
applied to him pursuant to the residual clause of the crime of violence definition.10
Second, while the majority opinion arguably only implied that the question of
whether mandatory sentencing guidelines are subject to vagueness challenges remained
open, Justice Sotomayor’s concurrence says so explicitly. As she explained:
The Court’s adherence to the formalistic distinction between mandatory
and advisory rules at least leaves open the question whether defendants
sentenced before our decision in [Booker]—that is, during the period in
which the Guidelines did ‘fix the permissible range of sentences,’—may
mount vagueness attacks on their sentences. That question is not
presented by this case and I, like the majority, take no position on its
Id. at 903 n.4 (Sotomayor, J., concurring) (internal citations to majority opinion and amici
brief omitted). Consequently, the majority and concurring opinions in Beckles lead
powerfully to the conclusion that Johnson did not in fact recognize any right or rule
Notably, the timeliness of the petitioner’s § 2255 motion in Beckles did not rely on Johnson’s applicability
to his advisory guidelines sentence, as he brought his motion within one year of the date on which his
conviction became final. See 28 U.S.C. § 2255(f)(1); see also Beckles, 137 S. Ct. at 891; United States v. Beckles,
565 F.3d 832 (11th Cir. 2009), cert. denied, 558 U.S. 906 (2009). But in cases such as Petitioner’s and those of
other defendants sentenced under the mandatory guidelines seeking relief under Johnson, the timeliness
issue is paramount. The vast majority of such defendants—all sentenced prior to the 2005 Booker
decision—must rely on § 2255(f)(3) as the jurisdictional basis for their motions.
applicable to the calculation of sentencing guideline ranges. As another magistrate
judge in this district recently concluded:
Attempting to reconcile these two concepts—that Beckles left open
whether sentences imposed under the mandatory, pre‐Booker guidelines
can be challenged as void for vagueness, but Johnson, decided two years
earlier, recognized the right to modify a sentence increased under the
mandatory, pre‐Booker guidelines and made the right retroactively
applicable on collateral review—reveals that [the petitioner’s] motion
should be denied. Simply put, if a concurring opinion says the existence
of a right remains an open question, and the majority opinion does not
explicitly address the right, then the Supreme Court did not previously
announce the existence of the same right.
Torres v. United States, Magistrate Judge’s Proposed Findings and Recommended
Disposition, doc. 25 in 16‐cv‐645 LH/WPL (D.N.M. June 20, 2017); see also Ellis v. United
States, No. 2:16‐CV‐484‐DAK, 2017 WL 2345562, at *2‐*3 (D. Utah May 30, 2017)
(“Because the court concludes that Johnson does not apply to [the petitioner’s] case and
that  the Supreme Court . . . has [not] directly recognized a right to modify a sentence
increased under the residual clause of U.S.S.G. § 4B1.2 before Booker, the court
concludes that . . . [the] petition is untimely [under § 2255(f)(3)].”).
Finally, the conclusion that the Supreme Court has not yet recognized a right to a
vagueness challenge of sentencing guideline provisions (in Johnson or otherwise) is
further bolstered by considering the import of a hypothetical future Supreme Court
decision. Assume in the future that the Supreme Court rules that pre‐Booker sentencing
guidelines are subject to vagueness challenges. Would such a case recognize a new rule
or right? “[A] case announces a new rule if the result was not dictated by precedent
existing at the time the defendant’s conviction became final.” Teague v. Lane, 489 U.S.
288, 301 (1989).11 A holding “is not so dictated . . . unless it would have been ‘apparent
to all reasonable jurists.’” Chaidez v. United States, 133 S. Ct. 1103, 1107 (2013) (quoting
Lambrix v. Singletary, 520 U.S. 518, 527‐28 (1997)). Did Johnson make it apparent to all
reasonable jurists that the residual clause in § 4B1.2 of the pre‐Booker sentencing
guidelines is subject to a vagueness challenge? Given that sentencing guidelines were
not at issue in Johnson and Beckles appears to have left that question open, I cannot agree
that it does. Looking at the question from a different angle, the Supreme Court has
discussed what does not constitute a “new rule”:
[A] case does not announce a new rule, when it is merely an application of
the principle that governed a prior decision to a different set of facts. . . .
In the analysis of habeas petitions and the potential retroactivity of “new” rulings to such petitions,
various similar, but different, terms are used to describe the right or rule upon which a request for relief
is based. In 28 U.S.C. § 2255(f)(3), the term “newly recognized” “right” is used. In 28 U.S.C. § 2255(h)(2),
the term “new rule of constitutional law” is used. In Teague v. Lane, 489 U.S. 288, 309‐13 (1989), the
Supreme Court uses the terms, “new constitutional rules of criminal procedure” and “new substantive
rules.” To the extent that they have addressed the significance of these distinctions, courts have
concluded that they should be interpreted as having the same functional meaning. See Headbird v. United
States, No. 15‐1468, 2016 WL 682984 (8th Cir. Feb. 19, 2016) (directly discussing the difference in language
and collecting cases in support of equating the “newly recognized right” inquiry with the “new rule”
inquiry of Teague); see also United States v. Swinton, 333 F.3d 481, 485 (3d Cir. 2003) (recognizing that “the
language is somewhat different” between subsections (h)(2) and (f)(3) of § 2255 but applying its own
precedent regarding a “new rule” in the (h)(2) context as controlling on the “new right” question in the
(f)(3) context); see also United States v. Cuong Gia Le, 206 F. Supp. 3d 1134, 1143‐44 (E.D. Va. 2016). Other
courts which have not explicitly noted the difference have simply used the terms interchangeably in their
analyses. See Butterworth v. United States, 775 F.3d 459, 464–65 (1st Cir. 2015), cert. denied, 135 S. Ct. 1517
(2015); Figuereo‐Sanchez v. United States, 678 F.3d 1203, 1207–08 (11th Cir. 2012); United States v. Mathur,
685 F.3d 396, 398 (4th Cir. 2012); Peterson v. Cain, 302 F.3d 508, 510–11 (5th Cir. 2002) (discussing the
statutory limitation period of 28 U.S.C. § 2244(d)(1)(C) requiring a “constitutional right . . . newly
recognized by the Supreme Court”—also enacted as part of AEDPA—by reference to the pre‐existing
“new rule” Teague jurisprudence). Therefore, notwithstanding the slight differences between these
terms, the undersigned concludes that the Teague “new rule” jurisprudence informs the question of what
constitutes a newly recognized right under 28 U.S.C. § 2255(f)(3).
[W]hen all we do is apply a general standard to the kind of factual
circumstances it was meant to address, we will rarely state a new rule . . . .
Chaidez, 568 U.S. at 1107 (quotations omitted) (emphasis in original). The Supreme
Court accordingly held that “garden‐variety applications of [a] test . . . do not produce
new rules.” Id. Again, I cannot conclude that, should the Supreme Court decide that
the pre‐Booker residual clause of U.S.S.G. § 4B1.2 is constitutionally void for vagueness,
such a result would be a garden‐variety application of Johnson. Instead, it would be
finally addressing the question left open in Beckles. See, e.g., United States v. Johnson, 457
U.S. 537, 551 (1982) (explaining that a prior precedent of Payton v. New York, 445 U.S.
573 (1980) “did not simply apply settled precedent to a new set of facts” because the
Payton Court “acknowledged that the ‘important constitutional question presented’
there had been ‘expressly left open in a number of [their] prior opinions.’”). In short,
the hypothetical future case would itself be recognizing a new right. Given that
conclusion, it cannot be said that Johnson has already recognized the right.12
For Petitioner’s motion to be timely such that this Court has jurisdiction to grant
it, he must establish that Johnson recognized the right he asserts and that such right was
made retroactive. 28 U.S.C. § 2255(f)(3). The right asserted by Petitioner is that
A contrary conclusion could dictate an unfair result in other future petitions. If Johnson recognized the
right asserted by Petitioner, prisoners sentenced under a vague pre‐Booker sentencing guideline may be
foreclosed from relief pursuant to § 2255(f)(3) unless they had filed a petition within a year of Johnson (i.e.,
no later than June 26, 2016), notwithstanding a new Supreme Court opinion expressly applying the void‐
for‐vagueness doctrine to pre‐Booker sentences.
procedural due process prohibits enhancing his sentencing guideline range pursuant to
the residual clause of the “crime of violence” definition in § 4B1.2(a)(2) of the guidelines
because that clause is void for vagueness. However, an essential component of such a
right is that sentencing guidelines are subject to a void‐for‐vagueness challenge
generally. Johnson simply does not recognize that premise. As such, it cannot recognize
the right asserted. As the Eleventh Circuit reasoned, “Johnson says and decided nothing
about career‐offender enhancements under the Sentencing Guidelines . . . .” Beckles, 616
F. App’x at 416.
Because the right asserted by Petitioner has not been recognized in Johnson or
otherwise, and because it does not qualify as timely under any other subsection of §
2255(f), I recommend that the Court DENY Petitioner’s § 2255 Motion as untimely and
DISMISS for lack of jurisdiction.13
GREGORY B. WORMUTH
United States Magistrate Judge
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF
SERVICE of a copy of these Proposed Findings and Recommended Disposition they
may file written objections with the Clerk of the District Court pursuant to 28 U.S.C. §
636(b)(1). A party must file any objections with the Clerk of the District Court within
the fourteen‐day period if that party wants to have appellate review of the proposed
findings and recommended disposition. If no objections are filed, no appellate
review will be allowed.
In his Third Supplemental Brief, Petitioner states the following: “In the event that the Court concludes
that Mr. Zamora’s motion is time‐barred for the reasons argued by the government, Mr. Zamora asks the
Court to hold his motion in abeyance pending the Supreme Court’s inevitable decision resolving the
applicability of Johnson in mandatory guidelines cases. This will avoid Mr. Zamora being later unfairly
precluded from filing what would then be a ‘second or subsequent’ petition simply because he abided by
the timeline dictated by the issuance of the Johnson decision.” Doc. 13 at 3 n.2. However, the Tenth
Circuit “has held generally that any habeas petition that does not result in an adjudication of the merits of
the habeas claims, whether that adjudication be on procedural or substantive grounds, will not count as a
first habeas petition for purposes of determining whether later habeas petitions are second or successive.”
Douglas v. Workman, 560 F.3d 1156, 1188 n.18 (10th Cir. 2009) (citing Haro‐Arteaga v. United States, 199 F.3d
1195, 1196 (10th Cir. 1999) (per curiam)). The undersigned concludes that the proposed dismissal for lack
of jurisdiction due to untimeliness would not invoke the 28 U.S.C. § 2244(b)(2) gatekeeping requirements
should Petitioner file a future motion after a Supreme Court decision recognizing the right he asserts.
Should the Court wish to memorialize this understanding, the final order could explicitly state that the
dismissal was without prejudice to refiling should the Supreme Court rule that the pre‐Booker sentencing
guidelines are subject to void‐for‐vagueness challenges. See, e.g., United States v. Juarez‐Sanchez, 223 F.
App’x 348, 349‐50 (5th Cir. 2007) (unpublished).
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