Neihart v. United States of America

Filing 15

Proposed Findings and Recommended Disposition by Magistrate Judge Carmen E. Garza. The Court RECOMMENDS that 1 Plaintiff's MOTION to Vacate, Set Aside or Correct Sentence under 28 U.S.C. 2255 (and Johnson v. United States) be DENIED as outline d in the Proposed Findings and Recommended Disposition. Objections to PF&RD due by 7/14/2017. 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).) (jrt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ROBERT O’DELL NEIHART,
Petitioner,
v.

No.

CV 16-708 WJ/CG
CR 12-2687 WJ

UNITED STATES OF AMERICA,
Respondent.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on Petitioner Robert O’Dell Neihart’s 28
U.S.C. § 2255 Motion to Vacate Sentence (the “Motion”), (CV Doc. 1), filed June 25,
2016; Respondent United States of America’s Response to Motion to Vacate Sentence
Pursuant to 28 U.S.C. § 2255 (CV Doc. 1) (the “Response”), (Doc. 7), filed November
17, 2016; and Petitioner’s Reply re Response to § 2255 Petition, (Doc. 12) (the “Reply”),
filed December 23, 2016.1 United States District Judge William P. Johnson referred this
case to Magistrate Judge Carmen E. Garza to perform legal analysis and recommend
an ultimate disposition. (CV Doc. 14).
The Court has reviewed the Motion, the Response, the Reply, and the relevant
law. After considering the parties’ filings, the record of the case, and relevant law, the
Court RECOMMENDS that Petitioner’s Motion be DENIED, and that this case be
DISMISSED WITH PREJUDICE.
I.

Background
On October 23, 2012, a grand jury returned a two-count indictment against

Petitioner. First, Petitioner was charged with armed bank robbery and putting the life of
1

Citations to “CV Doc. __” refer to documents in case number CV 16-708 WJ/CG. Citations to “CR Doc.
__” refer to documents in case number CR 12-2687 WJ.

a person in danger by using a dangerous weapon, in violation of 18 U.S.C. §§ 2113(a)
and (d). (CR Doc. 14 at 1). Second, Petitioner was charged with knowingly possessing,
carrying, and using a firearm in furtherance of and during and in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c)(1)(A). (CR Doc. 14 at 1-2). “Crime of
violence” under § 924(c) means any felony that (A) “has as an element the use,
attempted use, or threatened use of physical force against the person or property of
another, or (B) that by its nature involves a substantial risk that physical force against
the person or property of another may be used in the course of committing the offense.”
§§ 924(c)(3)(A)-(B). In Petitioner’s case, the crime of violence was the armed bank
robbery in Count One. (CR Doc. 14 at 2).
On February 20, 2015, Petitioner pled guilty to both Counts and stipulated to a
sentence between 148 months and 161 months. (CR Doc. 140 at 2, 4). As part of the
plea agreement, Petitioner agreed to “waive any collateral attack to [his] conviction
pursuant to 28 U.S.C. § 2255, except on the issue of counsel’s ineffective assistance in
negotiating or entering” the plea and waiver. (CR Doc. 140 at 7). Ultimately, on June 22,
2015, Petitioner was sentenced to 28 months for armed bank robbery and 120 months
for using a firearm during a crime of violence. (CR Doc. 150).
Four days after Petitioner was sentenced, the Supreme Court of the United
States decided Johnson v. United States, 135 S. Ct. 2551 (2015). In Johnson, the
Supreme Court held that the residual clause of the Armed Career Criminal Act (“ACCA”)
is unconstitutionally vague. Johnson, 135 S. Ct. at 2557. The residual clause in the
ACCA defines “violent felony” in part as any felony that “involves conduct that presents
a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). The

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Supreme Court held “the indeterminacy of the wide-ranging inquiry required by the
residual clause both denies fair notice to defendants and invites arbitrary enforcement
by judges. Increasing a defendant’s sentence under the clause denies due process of
law.” Johnson, 135 S. Ct. at 2557.
On June 25, 2016, Petitioner filed the instant Motion, arguing his conviction for
violating § 924(c)(3)(B) violates his right to due process. Although Petitioner titles his
Motion as a challenge to his sentence, he actually attacks his conviction for using a
firearm in furtherance of a crime of violence. See (CV Doc. 1 at 2) (“Mr. Neihart should
not have been convicted of carrying and discharging a firearm during and in relation to a
crime of violence.”); (CV Doc. 1 at 11) (“. . . [N]o legal basis exists for a § 924(c)
conviction.”). Petitioner argues the holding in Johnson, which technically only applied to
§ 924(e)(2)(B), also applies to the similarly worded § 924(c)(3)(B). (CV Doc. 1 at 7-11).
Petitioner also argues that armed bank robbery is not a crime of violence under §
924(c)(3)(A) because it does not require intent or violent force. (CV Doc. 1 at 3-7).
Therefore, Petitioner claims, armed bank robbery is not a crime of violence, and his
conviction and sentence must be vacated. (CV Doc. 1 at 11).
Respondent counters with a number of reasons why Petitioner is not entitled to
relief. First, Respondent claims Petitioner is procedurally barred from collaterally
attacking his conviction since he had the opportunity to raise his current arguments on
direct appeal and failed to do so. (CV Doc. 7 at 3-4). Second, Respondent notes that
Petitioner waived his right to collaterally attack his conviction. (CV Doc. 7 at 17-23).
Third, Respondent contends Johnson does not affect § 924(c)(3)(B) because of the
significant differences between it and § 924(e)(2)(B). (CV Doc. 7 at 11-17). Finally,

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Respondent argues that armed bank robbery in violation of §§ 2133(a) and (d) is a
crime of violence under § 924(c)(3)(A).
In his Reply, Petitioner reiterates his argument that federal armed bank robbery
is not a crime of violence. (CV Doc. 12 at 2-11). Concerning waiver, Petitioner does not
argue that he did not waive his right to collaterally attack his conviction; rather, he
argues that enforcing the waiver would result in a miscarriage of justice. (CV Doc. 12 at
11-14). Regarding procedural default, Petitioner claims he had cause to not appeal his
sentence because Johnson was not decided until after he was actually sentenced. (CV
Doc. 12 at 15). Additionally, Petitioner claims he is technically innocent and invokes the
“actual innocence” exception to procedural default. (CV Doc. 12 at 16).
II.

Standard of Review Under 28 U.S.C. § 2255
28 U.S.C. § 2255 provides that prisoners in federal custody may challenge their

sentences if: (1) their sentence was imposed in violation of the United States
Constitution or federal law; (2) the sentencing court had no jurisdiction to impose the
sentence; (3) the sentence exceeded the maximum authorized sentence; or (4) the
sentence is otherwise subject to collateral review. § 2255(a). Here, Petitioner claims his
sentence was imposed in violation of the United States Constitution. If the Court finds
that a sentence infringed Petitioner’s constitutional rights and is subject to collateral
review, the Court must vacate the sentence and discharge, resentence, or correct the
sentence as the Court believes appropriate. § 2255(b).
III.

Analysis

a. Whether Petitioner waived his right to collaterally attack his sentence
Petitioner’s plea agreement includes a “Waiver of Appeal Rights,” which states:

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[Petitioner] knowingly waives the right to appeal [his]
conviction and any sentence and fine within or below the
applicable advisory guideline range as determined by the
Court. . . . In addition, [Petitioner] agrees to waive any
collateral attack to [his] conviction pursuant to 28 U.S.C. §
2255, except on the issue of counsel’s ineffective assistance
in negotiation or entering this plea or this waiver.
(CR Doc. 140 at 7).
A petitioner’s waiver of his right to collateral attack under § 2255 “is generally
enforceable where the waiver is expressly stated in the plea agreement.” United States
v. Cockerham, 237 F.3d 1179, 1183 (10th Cir. 2001). When a petitioner waives the right
to collaterally attack his sentence in a plea agreement but later files a § 2255 motion,
courts must decide: (1) whether the collateral attack falls within the scope of the waiver;
(2) whether the petitioner knowingly and voluntarily waived his right to collateral review;
and (3) whether enforcing the waiver would result in a miscarriage of justice. United
States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004). The Court must “strictly
construe[]” the waiver’s scope, and “any ambiguities . . . will be read against the
Government and in favor of” the petitioner’s right to collateral review. Id. (citation
omitted).
1. Within the Scope of the Waiver
Petitioner agreed to waive his right to collaterally attack his conviction pursuant to
28 U.S.C. § 2255, except on the issue of his counsel’s ineffective assistance in
negotiating or entering the plea or waiver. (CR Doc. 140 at 7). Petitioner’s claim is a
collateral attack on his conviction, brought pursuant to 28 U.S.C. § 2255, and Petitioner
does not allege that his counsel was ineffective in negotiating the plea or the waiver.
Therefore, the Court finds that Petitioner’s claim falls within the scope of the waiver.

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2. Knowing and Voluntary
The plea agreement clearly states the knowing and voluntary nature of the plea
and waiver. Petitioner stated he “agrees and represents that this plea of guilty is freely
and voluntarily made and is not the result of force, threats, or promises (other than
those set forth in this agreement).” (CR Doc. 140 at 8). As for the waiver, Petitioner
affirmed he was aware of his rights to appeal his conviction and sentence and
“knowingly” waived his right to appeal and collaterally attack his conviction. Id. at 7. At
the end of the plea agreement, Petitioner signed that he understood the terms of the
plea and voluntarily agreed to them, that his attorney advised him of his rights and the
consequences of entering the plea agreement, and that no one forced or threatened
him into agreeing to the terms. Id. at 10. Based on this evidence, and noting that
Petitioner does not dispute that he knowingly and voluntarily agreed to the waiver, the
Court finds that Petitioner knowingly and voluntarily waived his right to collaterally attack
his conviction.
3. Miscarriage of Justice
While Petitioner does not dispute that his Motion falls within the scope of the
waiver or that he knowingly and voluntarily waived his right to collateral review,
Petitioner does argue that enforcing the waiver would result in a miscarriage of justice.
(CV Doc. 12 at 11-14). The Tenth Circuit has explained that enforcement of a waiver
results in a miscarriage of justice in four situations: “[1] where the district court relied on
an impermissible factor such as race, [2] where ineffective assistance of counsel in
connection with the negotiation of the waiver renders the waiver invalid, [3] where the
sentence exceeds the statutory maximum, or [4] where the waiver is otherwise

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unlawful.” Hahn, 359 F.3d at 1327. “This list is exclusive; enforcement of an appellate
waiver does not result in miscarriage of justice unless enforcement would result in one
of the four situations enumerated above.” United States v. Polly, 630 F.3d 991, 1001
(10th Cir. 2011) (citation omitted). Additionally, error does not make a waiver “otherwise
unlawful” unless it “seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.” Hahn, 359 F.3d at 1327 (citation omitted).
Petitioner makes no suggestion, nor is there any evidence before the Court, that
any of the first three situations are implicated here. Petitioner argues, however, that
enforcement of the waiver would result in a miscarriage of justice because Petitioner’s
sentence is based on § 924(c)’s residual clause, which is unconstitutional pursuant to
Johnson. (CV Doc. 12 at 12-14).2 Petitioner relies on United States v. Madrid, 805 F.3d
1204, 1212 (10th Cir. 2015), in which the Tenth Circuit found that the imposition of an
enhanced sentence pursuant to the unconstitutionally vague residual clause in the
Sentencing Guidelines undermined the fundamental fairness of the defendant’s
sentencing hearing. Id. Petitioner also relies on United States v. Daugherty, No. 07-CR87-TCK, 2016 WL 4442801 (N.D. Okla. Aug. 22, 2016) (unpublished), in which the
district court found that it would be a miscarriage of justice to enforce a collateral-attack
waiver in a post-conviction attack based on Johnson. Id. Finally, Petitioner relies on
several cases outside the Tenth Circuit where courts have declined to enforce
collateral-attack waivers in cases raising Johnson claims. Id. at 13-14 (citing cases from
the Ninth and Sixth Circuits, the Western District of New York, the Eastern District of
2

It is important to note that Respondent argues that the Johnson holding does not apply to § 924(c) and
that, regardless, Petitioner’s predicate offenses qualify as crimes of violence under § 924(c)’s force
clause. (CV Doc. 7 at 11-15). Nevertheless, because the validity of the collateral attack waiver in
Petitioner’s plea agreement is not dependent on the merits of Petitioner’s underlying claim, and because
the Court finds below that the waiver is enforceable, the Court does not reach these issues.

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Michigan, the Southern District of California, the Eastern District of Washington, and the
District of Oregon).
The Court finds Petitioner’s reliance on Madrid and Daugherty unpersuasive. In
Madrid, the Tenth Circuit considered whether the defendant forfeited his right to object
to his sentence by failing to assert that the residual clause in § 4B1.2(a)(2) was void for
vagueness. Madrid, 805 F.3d at 1211. Forfeiture is the failure to timely assert a right or
the failure to timely object to the violation of a right. See United States v. Olano, 507
U.S. 725, 733 (1993); United States v. Carrasco-Salazar, 494 F.3d 1270, 1272 (10th
Cir. 2007). Waiver, on the other hand, is the “intentional relinquishment or abandonment
of a known right.” Olano, 507 U.S. at 733 (internal quotation marks omitted). Forfeiture
occurs through neglect, whereas waiver is intentional. See Carrasco-Salazar, 494 F.3d
at 1272. In other words, unlike the defendant in Madrid, who forfeited his right to object
to his sentence by failing to assert that the residual clause in § 4B1.2(a)(2) was void for
vagueness, Petitioner intentionally relinquished his right to collaterally attack his
conviction, regardless of the merits of any claims he may have had.
In United States v. Frazier-LeFear, 665 Fed. Appx. 727, 732-33 (10th Cir. 2016)
(unpublished), the Tenth Circuit considered the Madrid holding in the context of whether
a collateral-attack waiver was unlawful. The Tenth Circuit held that it is not a
miscarriage of justice to enforce a defendant’s waiver to collaterally attack his sentence
with respect to a claim raised in light of the Johnson decision. Id. In so holding, the
Tenth Circuit abrogated the holding in Daugherty, stating that “[t]he analytical mistake in
Daugherty” stems from Tenth Circuit precedent “explaining [that] Hahn’s fourth
miscarriage-of-justice exception makes it clear that it is the waiver, not some other

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aspect of the proceeding, that must be unlawful to undermine the waiver.” 665 Fed.
Appx. 732. Thus, an error rendering a waiver “otherwise unlawful” must relate to the
waiver itself, not to another aspect of the proceedings, such as the validity of a
defendant’s conviction or sentence. See United States v. Sandoval, 477 F.3d 1204,
1208 (10th Cir. 2007) (“Our inquiry [under the fourth exception] is not whether the
sentence is unlawful, but whether the waiver itself is unlawful because of some
procedural error or because no waiver is possible.”). That an error is based on a
constitutional claim or an intervening change in the law does not change this analysis.
See Frazier-LeFear, 665 Fed. Appx. at 773 (“Given our own precedent enforcing
waivers with respect to both changes in law and claims of constitutional error (except
those which render the waiver itself unlawful), this panel is not in a position at this late
date to recognize a limitation on waiver[s] for constitutional challenges to sentence[s]
based on post-plea changes in law.”).
Here, Petitioner does not argue that his waiver of appeal rights is itself unlawful
or improper. Instead, he contends that, because the residual clause of § 924(c) has
been rendered unconstitutional by Johnson, his “sentence undermines the fundamental
fairness of a sentence and causes a miscarriage of justice.” (CV Doc. 12 at 14). As
explained by the Tenth Circuit:
The essence of plea agreements . . . is that they represent a
bargained-for understanding between the government and
criminal defendants in which each side foregoes [sic] certain
rights and assumes certain risks in exchange for a degree of
certainty as to the outcome of criminal matters. One such
risk is a favorable change in the law. To allow defendants or
the government to routinely invalidate plea agreements
based on subsequent changes in the law would decrease
the prospects of reaching an agreement in the first place, an

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undesirable outcome given the importance of plea
bargaining to the criminal justice system.
Frazier-LeFear, 665 Fed. Appx. at 730 (alterations in original). Moreover, “[a] defendant
may preserve appellate rights in this respect . . . by including an explicit exception in his
waiver for favorable changes in the law.” Id. at 730, n.3.
Because Petitioner has not alleged any error that relates to the appellate waiver
itself, the Court finds that the waiver is enforceable under Frazier-LeFear. Additionally,
because Tenth Circuit law on this issue is clear and binding on this Court, the Court
finds it unnecessary to distinguish the out-of-circuit cases Petitioner relies on.
IV.

Recommendation
For the foregoing reasons, the Court finds that Petitioner knowingly and

voluntarily waived his right to bring the claim he asserts in his Motion, and that enforcing
the waiver would not constitute a miscarriage of justice. Therefore, the Court
RECOMMENDS that Petitioner’s 28 U.S.C. § 2255 Motion to Vacate Sentence (the
“Motion”), (CV Doc. 1), be DENIED. The Court also RECOMMENDS that a certificate of
appealability be DENIED.
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.

THE HONORABLE CARMEN E. GARZA
UNITED STATES MAGISTRATE JUDGE

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