Wiseman v. United States of America
Filing
20
MEMORANDUM OPINION AND ORDER by District Judge James A. Parker Transferring to U.S. Court of Appeals for the Tenth Circuit re 10 First Amended Motion to Vacate/Set Aside/Correct Sentence (2255). (bap)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA,
Respondent,
No. 16-cv-00700-JAP/KRS
No. 96-cr-00072-JAP
v.
LONNIE WISEMAN,
Petitioner.
MEMORANDUM OPINION AND ORDER
This Memorandum Opinion and Order addresses Petitioner Lonnie Ray Wiseman’s First
Amended Motion to Vacate Judgment Under 28 U.S.C. § 2255 (CV Doc. 10) (First Amended
Motion) filed May 16, 2017. The First Amended Motion has been fully briefed.1 Because
Petitioner’s First Amended Motion is a “second or successive” motion filed without the requisite
authorization of the United States Court of Appeals for the Tenth Circuit, this Court does not
have jurisdiction over Petitioner’s claims. In the interest of justice, the Court intends to transfer
Petitioner’s First Amended Motion to the Tenth Circuit Court of Appeals under 28 U.S.C. § 1631
and in accordance with In re Cline, 531 F.3d 1249 (10th Cir. 2008) (per curiam).
I.
BACKGROUND
A long, convoluted history of Petitioner’s efforts to obtain habeas corpus relief preceded
Petitioner’s filing of his First Amended Motion. The story begins in April of 1997, when a jury
convicted Petitioner of six counts of robbery affecting interstate commerce (Counts 1-5 and 7),
contrary to 18 U.S.C. § 1951(a), and two counts of use of a firearm during a crime of violence
(Counts 6 and 8), contrary to 18 U.S.C. § 924(c)(1). (CR. Docs. 148, 188-89). The penalty for
1
See FIRST AMENDED MOTION TO VACATE JUDGMENT UNDER 28 U.S.C. § 2255 (CV Doc. 10) (First
Amended Motion); UNITED STATES’ RESPONSE TO FIRST AMENDED MOTION TO VACATE JUDGMENT
UNDER 28 U.S.C. § 2255 (CV Doc. 13) (Response); PETITIONER’S REPLY TO GOVERNMENT’S RESPONSE
TO FIRST AMENDED MOTION TO VACATE JUDGMENT UNDER 28 U.S.C. § 2255 (CV Doc. 18) (Reply).
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robbery affecting interstate commerce is a maximum of twenty years’ imprisonment. 18 U.S.C. §
1951(a). Use of a firearm during a crime of violence merits a mandatory consecutive sentence of
10 years’ imprisonment if the weapon is a semi-automatic assault weapon and an additional
mandatory 25 years for a second or subsequent firearms conviction to run consecutive to both the
sentence for the underlying offense and the 10 year sentence for the first firearms offense. 18
U.S.C. § 924(c)(1); United States v. Brattle, 289 F.3d 661, 667 (10th Cir. 2002) (“§ 924(c)(1)
mandates a consecutive sentence for the use of a firearm in the commission of a violent
crime[.]”). The Court sentenced Petitioner to 235 months’ imprisonment for each of the six
counts of robbery (Counts 1-5 and 7) to run concurrently, 120 months on the first firearms
offense (Count 6) to run consecutively to the concurrent sentences for the robbery counts, and
240 months for the second firearms offense (Count 8) to run consecutively to all other counts.
(CR Docs. 188-189). Petitioner’s total term of federal imprisonment was 595 months. (CR Docs.
188-189). The Court rendered judgment on Defendant’s convictions and sentences on September
9, 1997. (CR. Doc. 188). Petitioner appealed his convictions and sentences which were affirmed
by the United States Court of Appeals for the Tenth Circuit on April 5, 1999. See U.S. v.
Wiseman, 172 F.3d 1196, 1220 (10th Cir. 1999) (Wiseman I), abrogated by Rosemond v. U.S., __
U.S. __, 134 S. Ct. 1240 (2014).
On October 2, 2000, Petitioner filed in District Court his first motion to vacate, set aside
or correct his sentence under 28 U.S.C. § 2255 (D.N.M. First Motion). (CR. Doc. 209). On
March 20, 2001, the District Court denied Petitioner’s D.N.M. First Motion. (CR Docs. 219220). Petitioner appealed, and on July 18, 2002 the Tenth Circuit ruled that, because a jury
instruction did not support the jury’s verdict on Petitioner’s first firearm offense under 18 U.S.C.
§ 924(c)(1) (Count 6), the case should be remanded to the District Court for resentencing as to
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Count 6. See U.S. v. Wiseman, 297 F.3d 975, 982-83 (10th Cir. 2002) (Wiseman II). On
September 16, 2002, without a hearing, the District Court entered an Amended Judgment
reducing Petitioner’s sentence on Count 6 to 60 months’ imprisonment, with a resulting total
new sentence of 535 months’ imprisonment. (CR Doc. 222).
During the almost fourteen-year interval from entry of the 2002 Amended Judgment (CR.
Doc. 222) to Petitioner’s presentment in the Tenth Circuit on June 23, 2016 of his next motion
for habeas corpus under § 2255 (COA First Motion), the Supreme Court of the United States
issued a line of cases relevant to Petitioner’s argument. In 2010 the Supreme Court in Magwood
v. Patterson, held that under certain circumstances a petitioner’s second-in-time petition under
18 U.S.C. § 2254 challenging his new sentence was not a “second or successive” petition
requiring federal appellate court permission to file it. 561 U.S. 320, 341-42 (2010). In 2014 the
Supreme Court issued a ruling in Rosemond v. United States, __ U.S. __ , 134 S. Ct. 1240, 1251
(2014) that abrogated Wiseman I. And in 2015, the Supreme Court ruled in Johnson v. United
States, __ U.S. __ , 135 S. Ct. 2551, 2563 (2015) that certain language in the Armed Career
Criminal Act (ACCA) was void for vagueness.
The year 2016 marked the advent of a flurry of new § 2255 activity by Petitioner. On
June 23, 2016, Petitioner filed an application in the United States Court of Appeals for the Tenth
Circuit requesting permission to file a second or successive § 2255 petition based on the ruling in
Johnson. See In re Wiseman, COA No. 16-2152. To this application Petitioner attached a copy of
his proposed § 2255 motion (COA First Motion). The following day, June 24, 2016, Petitioner
filed in District Court a § 2255 motion (D.N.M. Second Motion) that was identical to the COA
First Motion that he filed the previous day in the Tenth Circuit. Also on June 24, 2016, the
Tenth Circuit entered an Order in COA No. 16-2152 that abated Petitioner’s application for
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authorization to file a second or successive § 2255 motion and with it the attached proposed
COA First Motion. (CR Doc. 228).
Next, on October 20, 2016, Petitioner filed in the Tenth Circuit another application
requesting permission to file a second or successive petition under § 2255 with an attached
proposed § 2255 motion (COA Second Motion) challenging his firearm convictions (Counts 6
and 8) under the Rosemond case. See In re Wiseman, COA No. 16-2239. On December 29, 2016,
in COA No. 16-2239 the Tenth Circuit denied as a second or successive § 2255 motion
Petitioner’s application to file the COA Second Motion, holding that Rosemond did not create a
new rule of constitutional law and that the United States Supreme Court had not made it
retroactively applicable to cases on collateral review.
Then on February 10, 2017, Petitioner filed in the Tenth Circuit COA No. 16-2152 an
unopposed motion to transfer his COA First Motion to the District Court, arguing under
Magwood that the COA First Motion was not a second or successive § 2255 motion requiring
federal appellate permission to file. On February 23, 2017, the Tenth Circuit lifted the Order that
had abated COA No. 16-2152 and granted Petitioner’s motion to transfer the COA First Motion
to the District Court, explicitly expressing no opinion regarding Petitioner’s Magwood argument.
(CR Doc. 233).
On May 15, 2017, Petitioner filed in District Court an Unopposed Motion to Amend
Motion to Vacate Judgment Under 28 U.S.C. § 2255 and to Exceed Page Limit requesting leave
to file his First Amended Motion.2 (CV Doc. 8). On May 16, 2017, the District Court entered an
Order (CV Doc. 9) allowing Petitioner to file his First Amended Motion (CV Doc. 10) in which
he argued that his convictions on Counts 6 and 8 should be vacated based on both Rosemond and
Johnson. In addition, Petitioner contends in the First Amended Motion that under Weekes v.
2
The First Amended Motion appears to amend and supersede both COA First Motion and D.N.M. Second Motion.
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Fleming, 301 F.3d 1175 (10th Cir. 2002) he should receive certain credit against his federal
sentence. The United States asks the Court to dismiss Petitioner’s entire First Amended Motion
as an unauthorized second or successive § 2255 motion. In addition, the United States contends
that all but Petitioner’s Johnson claim are time-barred, and maintains that regardless Petitioner is
not eligible for relief under Johnson because Petitioner’s predicate offense, Hobbs Act robbery,
is a crime of violence under both the elements clause and the residual clause of 18 U.S.C. §
924(c)(3). (CV Doc. 13).
II.
DISCUSSION
The threshold issue the Court must decide is whether Petitioner’s First Amended Motion
is “second or successive” under 28 U.S.C. § 2255(h). The Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA) places restrictions on the ability of a petitioner, held pursuant to a
federal sentence, to file a second or successive petition for writ of habeas corpus by limiting the
grounds for a second petition and requiring the petitioner to obtain authorization from the Court
of Appeals before filing it. See 28 U.S.C. § 2255(h). The term “second or successive” is a habeas
“term of art,” Magwood, 561 U.S. at 332, and “does not simply refer to every § 2255 motion
filed second in time to a previous § 2255 motion,” In re Weathersby, 717 F.3d 1108, 1110 (10th
Cir. 2013). Absent authorization from the Court of Appeals, a district court lacks jurisdiction to
address the merits of a second or successive § 2255 motion. In re Cline, 531 F.3d 1249, 1251
(10th Cir. 2008).
A. Petitioner’s First Amended Motion is an Unauthorized Second or Successive
Motion
The parties do not dispute that Petitioner Wiseman first filed a motion to vacate or amend
his sentence under 28 U.S.C. § 2255 (D.N.M. First Motion) in 2000, and that Petitioner’s present
First Amended Motion is second in time to that D.N.M. First Motion. But Petitioner claims that,
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according to the Supreme Court’s decision in Magwood, the First Amended Motion is not
“second or successive” at all because it is his first collateral motion attacking the Amended
Judgment the District Court entered in 2002. (CV Doc. 18 at 2-4). The Government distinguishes
Petitioner’s case from Magwood and contends that the Amended Judgment that rendered the new
sentence does not constitute a new judgment because it was not the result of a complete and new
assessment of the evidence, and it left undisturbed seven of the eight counts on which Petitioner
was convicted. (CV Doc. 13 at 6-7).
In Magwood the petitioner was found guilty of murder and sentenced to death in
Alabama state court. 561 U.S. at 324. Following an unsuccessful direct appeal, the petitioner
filed a federal habeas petition under 28 U.S.C. § 2254.3 Id. at 325-26. The federal district court
upheld the petitioner’s conviction, but vacated his death sentence and remanded to the state court
for a new sentencing hearing. Id. at 326. Following a full resentencing hearing, including a new
evidentiary review, the state trial court again imposed the death penalty. Id. The petitioner then
filed in the federal district court a second § 2254 petition challenging his new death sentence. Id.
at 328. The federal district court again conditionally granted the writ, but the Court of Appeals
for the Eleventh Circuit reversed, determining that the petitioner’s motion was “second or
successive” because he could have raised the same challenge to his original sentence in his prior
§ 2254 petition. Id. at 329.
The Supreme Court rejected the Eleventh Circuit’s interpretation and reversed, holding
that the petition was not “second or successive” because it was the “first application” to
challenge the “intervening judgment” entered after the second sentencing hearing. Id. at 339,
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The Supreme Court has indicated Magwood extends to § 2255 petitions. See Garza v. United States, __ U.S. __ ,
131 S.Ct. 1469 (2011) (vacating the dismissal of a § 2255 motion and remanding for consideration “in light of
Magwood”). The Tenth Circuit has also addressed Magwood in the context of § 2255 petitions. See, e.g., U.S. v.
McGaughy, 670 F.3d 1149, 1159 n.7 (10th Cir. 2012); U.S. v. Ailsworth, 513 Fed. Appx. 720 (10th Cir. 2013).
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342. In other words, it was the first petition to challenge the petitioner’s new death sentence. Id.
at 339. To reach this conclusion, the Supreme Court examined the text of the statute and
determined that the “text and the relief it provides indicate that the phrase ‘second and
successive’ must be interpreted with respect to the judgment challenged.” Id. at 332-33. The
Supreme Court concluded that where “there is a new judgment intervening between the two
habeas petitions,…an application challenging the resulting new judgment is not ‘second or
successive’ at all.” Id. at 341-42 (internal quotation marks and citation omitted). The Supreme
Court expressly left open the question whether, after resentencing, a petitioner would be entitled
to challenge “not only his resulting, new sentence, but also his original, undisturbed conviction.”
Id. at 342.
The Government cites to In re Martin, 398 Fed. Appx. 326, 327 (10th Cir. 2010) and In
re Fogle, No 12-1252, 2012 U.S. App. LEXIS 26914 (10th Cir. July 3, 2012) to support its
position that Petitioner’s 2002 Amended Judgment is not a new or intervening judgment because
it was not the result of “complete and new assessment of all of the evidence.” (CV Doc. 13 at 67). But in each of those cases the petitioner’s amended judgment simply corrected clerical errors
in the sentence, and the Tenth Circuit rejected the argument that an amended judgment entered to
correct clerical errors constituted a new judgment under Magwood. See In re Martin, 398 Fed.
Appx. at 327 (denying the petitioner’s motion for authorization to file a second or successive §
2254 petition where “the amended judgment merely corrected a clerical error – one which did
not rise to the level of constitutional error”);4 In re Fogle, No-1252, 2012 U.S. App. LEXIS
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Judge Hartz issued a dissenting opinion in In re Martin suggesting, as he did in this case regarding Petitioner’s
application to file a second or successive motion under Rosemond, that under Magwood Mr. Martin’s application
should be treated as an original application under § 2254 because it was his first petition challenging his new
judgment. 398 Fed. Appx. at 327-28 (Hartz, J., Dissenting). Noting that such interpretation leads to a disturbing
result by “provid[ing] frequent filers like Mr. Martin with new opportunities to burden the courts,” he stated, “I
suspect…that the issue will dog the courts for some time. Ultimately, this is a matter that will likely land in the lap
of Congress, and it would seem to deserve prompt attention by the Judicial Conference.” Id. at 328.
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26914 *3-4 (10th Cir. July 3, 2012) (denying the petitioner’s motion for authorization to file a
second or successive § 2254 petition in part because correction of petitioner’s mittimus did not
result in a new judgment).
In this case, Petitioner’s Amended Judgment was the result of a partially successful §
2255 petition rather than mere correction of a clerical error. The Tenth Circuit determined that
the jury was improperly instructed on Count 6, the first of Petitioner’s § 924(c) convictions, and
remanded the case with instructions to the district court to vacate the sentence on Count 6 and to
amend the sentence in accordance with the statute. The Amended Judgment reduced Petitioner’s
overall sentence by 60 months. An amended judgment under these circumstances constitutes a
“new” judgment. See U.S. v. Ailsworth, 513 Fed. Appx. 720, 721-23 (10th Cir. 2013) (holding
under Magwood that it was debatable whether the district court was correct in determining that a
petition was an unauthorized second or successive § 2255 motion where the trial court had
entered an amended judgment reducing petitioner’s term of supervised release following a
partially successful § 2255 motion and this was petitioner’s first § 2255 petition challenging the
amended judgment). This does not end the Court’s inquiry because the Magwood Court left open
the possibility that, if a judgment revises only the sentence and not the underlying conviction, as
is the case here, a second challenge to the underlying conviction might come under § 2244(b) or,
in this case, § 2255(h). See Magwood, 560 U.S. at 342. Here, Petitioner is not claiming error in
the new, reduced sentence imposed in 2002. Instead, he is challenging the two underlying and
undisturbed § 924(c) convictions – raising the exact question the Magwood Court declined to
address.
Of the other jurisdictions that have weighed the question the Supreme Court left open in
Magwood, the overwhelming majority have agreed that when a habeas petition is the first to
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challenge a new judgment it is not “second or successive” even if it challenges undisturbed parts
of the original judgment. These Circuit Courts of Appeals have reasoned that the Magwood
framework eliminated a claims-based approach and focused on the newness of the judgment
where the sentence and conviction form a single “judgment” for habeas review. In light of
Magwood, these Courts of Appeals have determined that they “must interpret successive
applications with respect to the judgment challenged and not with respect to particular
components of that judgment.” Johnson v. United States, 623 F.3d 41, 46 (2d Cir. 2010). See,
e.g., In re Gray, 850 F.3d 139, 143 (4th Cir. 2017); King v. Morgan, 807 F.3d 154, 158, 160 (6th
Cir. 2015); Insignares v. Sec’y, Florida Dep’t of Corr., 755 F.3d 1273, 1281 (11th Cir. 2014); In
re Brown, 594 Fed. Appx. 726, 729 (3d. Cir. 2014); Wentzell v. Neven, 674 F.3d 1124, 1126-28
(9th Cir. 2012); Johnson, 623 F.3d at 42, 44. However, case law in the Tenth Circuit dividing
criminal judgments for AEDPA purposes dictates a different result here.
In Prendergast v. Clements, the Tenth Circuit held that otherwise time-barred “attacks on
[an] original conviction are [not] resurrected” by a resentencing. 699 F.3d 1182, 1186 (10th Cir.
2012). In that case, the state trial court resentenced the petitioner after he violated the terms of
his probation. Id. at 1183. Within a year of resentencing he filed a § 2254 petition presenting five
claims. Id. Two of his five claims that were related to his resentencing were dismissed for failure
to exhaust state remedies. Id. at 1184. Petitioner’s other three claims attacked the basis of his
original conviction. Id. The federal district court dismissed these three claims as untimely under
28 U.S.C. § 2244(d)(1). Id. On appeal, the petitioner contended that because his challenges based
on resentencing were timely - even though these two claims were dismissed - his three
challenges to his original conviction were also timely. Id. at 1186. The Tenth Circuit rejected this
argument because it was persuaded to take the claim-by-claim approach to § 2244(d)(1) that the
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Third Circuit Court of Appeals had adopted in Fielder v. Varner. 379 F.3d 113, 118-120 (3d Cir.
2004) (holding that § 2244(d)(1) should be applied on a claim-by-claim basis first because this
approach is consistent with how statutes of limitations are generally applied and second because
“a claim-by-claim approach is necessary in order to avoid results that we are confident Congress
did not want to produce”). The Tenth Circuit also agreed with the Third Circuit that accepting
the petitioner’s premise would be contrary to Congress’s intentions in AEDPA. Prendergast, 699
F.3d at 1186.
In Burks v. Raemisch, the Tenth Circuit distinguished Magwood and relied on
Prendergast to conclude that the petitioner’s new sentence as a result of the state trial court’s sua
sponte review did not renew the statute of limitations clock under 28 U.S.C. § 2244(d)(1) to
permit a challenge to the undisturbed underlying conviction. 680 Fed. Appx. 686, 689-91 (10th
Cir. 2017); see also Carillo v. Zupan, 626 Fed. Appx. 780, 781-82 (10th Cir. 2015) (holding that
the petitioner’s habeas petition was untimely because it challenged his conviction rather than his
corrected sentence and noting that the Magwood Court declined to address the question presently
before this Court).
The United States Court of Appeals for the Seventh Circuit has adopted a similar
approach to dividing criminal judgments for AEDPA claims. In Suggs v. U.S., the Seventh
Circuit refused to extend Magwood and held that the petitioner’s § 2255 motion filed after
resentencing was a second or successive motion because it challenged the underlying conviction
rather than alleging errors during the resentencing. 705 F.3d 279, 280-81 (7th Cir. 2013). In so
deciding, the Seventh Circuit recognized that its reading of Magwood differed from the approach
taken by other circuits, but found that Magwood’s guidance wasn’t clear enough for it to depart
from Seventh Circuit precedent that was clear on the question. Id. at 284-85. The Seventh Circuit
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also expressed concern that the broader readings of Magwood might “have the odd effect of
interpreting AEDPA to relax limits on successive claims beyond the pre-AEDPA standards.” Id.
at 285.
This Court is bound by the Tenth Circuit’s claim-by-claim approach to addressing
criminal judgments for AEDPA purposes as set forth in Prendergast. The Court concludes that
Petitioner’s First Amended Motion, which challenges his underlying § 924(c) convictions and
not his new sentence on Count 6, is an unauthorized second or successive § 2255 motion.
B. The Court Will Transfer Petitioner’s First Amended Motion to the United
States Court of Appeals for the Tenth Circuit in the Interest of Justice
A district court may transfer an unauthorized second or successive claim “to [the United
States Court of Appeals for the Tenth Circuit] if it determines it is in the interest of justice to do
so under [28 U.S.C.] § 1631, or it may dismiss the motion or petition for lack of jurisdiction.” In
re Cline, 531 F.3d at 1252.
Factors considered in deciding whether a transfer is in the interest
of justice include whether the claims would be time barred if filed
anew in the proper forum, whether the claims alleged are likely to
have merit, and whether the claims were filed in good faith or if,
on the other hand, it was clear at the time of filing that the court
lacked the requisite jurisdiction.
Id. at 1251. “Where there is no risk that a meritorious successive claim will be lost absent a §
1631 transfer, a district court does not abuse its discretion if it concludes it is not in the interest
of justice to transfer the matter…for authorization.” Id. at 1252. To be meritorious, a second or
successive § 2255 motion must be based on:
(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
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by the Supreme Court, that was previously unavailable.
§ 2255(h)(1)-(2)
If Petitioner’s First Amended Motion only contained Petitioner’s challenges to his §
924(c) convictions under Rosemond or his claim of entitlement to credit against his federal
sentence, this Court would conclude that Petitioner’s motion lacks merit and would dismiss the
First Amended Motion rather than transfer it to the Court of Appeals because neither claim is
based on newly discovered evidence or a new rule of constitutional law. In fact, Petitioner’s
claims seeking relief under Rosemond have already been raised and addressed by the Tenth
Circuit in COA No. 16-2239 in which it denied the COA Second Motion. However, Petitioner’s
challenges under Johnson to his firearms convictions (Counts 6 and 8) are meritorious under §
2255(h)(2) because in Johnson the Supreme Court announced a new rule of constitutional law
that was made retroactive to cases on collateral review in Welch v. United States, __ U.S. __ ,
136 S. Ct. 1257 (2016).5 Petitioner filed his First Amended Motion within one year of the
Johnson decision.6 Dismissal instead of transfer of Petitioner’s First Amended Motion might
preclude Petitioner from presenting a potentially timely claim in the proper forum. Finally,
Petitioner appears to have acted in good faith in seeking the transfer of his petition to this Court
given the Supreme Court’s decision in Magwood. In interest of justice this Court will transfer
Petitioner’s First Amended Motion to Vacate Judgment Under 28 U.S.C. § 2255 (CV Doc. 10) to
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The Court does not express an opinion on whether Johnson, in which the Supreme Court held that the residual
clause of the Armed Career Criminal Act (ACCA) is unconstitutionally vague, see 135 S.Ct. at 2557, establishes the
right Petitioner now asserts with regards to § 924(c)(3). 28 U.S.C. § 2255(h)(2) requires only that Petitioner’s
motion be based on a new rule of constitutional law made retroactive to cases on collateral review - which is
satisfied here. Any further inquiry regarding timeliness or applicability of Johnson to § 924(c)(3) involves the merits
of Petitioner’s claims which this Court lacks jurisdiction to address absent authorization from the Court of Appeals
allowing Petitioner to proceed with a second or successive § 2255 motion.
6
Petitioner’s D.N.M. Second Motion (CV Doc. 1) was filed on June 24, 2016 within one year of the Johnson
decision. Petitioner’s Johnson claims in the First Amended Motion relate back to the date of the original pleading.
See Fed. R. Civ. P. 15(c); see also United States v. Espinoza-Saenz, 235 F.3d 501, 505(10th Cir. 2000) (holding that
under Rule 15(c) an untimely amendment to a § 2255 motion that clarifies or amplifies a claim or theory in the
original motion may, in the court’s discretion, relate back to the date of the original motion if the original motion
was timely filed and the proposed amendment does not seek to add a new claim).
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the United States Court of Appeals for the Tenth Circuit.
III.
CONCLUSION
The Court concludes that Petitioner’s FIRST AMENDED MOTION TO VACATE
JUDGMENT UNDER 28 U.S.C. § 2255 (CV Doc. 10) is a second or successive motion under
28 U.S.C. § 2255(h), and as such the Court lacks subject matter jurisdiction to address the merits
of Petitioner’s claims. The Court finds under 28 U.S.C. § 1631 that it is in the interest of justice
to transfer Petitioner’s First Amended Motion to the United States Court of Appeals for the
Tenth Circuit.
IT IS THEREFORE ORDERED that Petitioner’s FIRST AMENDED MOTION TO
VACATE JUDGMENT UNDER 28 U.S.C. § 2255 (CV Doc. 10) be TRANSFERRED to the
United States Court of Appeals for the Tenth Circuit.
________________________________________
SENIOR UNITED STATES DISTRICT JUDGE
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