Neihart v. United States of America

Filing 23

ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION by District Judge William P. Johnson. IT IS HEREBY ORDERED that: 1) Petitioner's counsel's Motion to Withdraw 17 is GRANTED; 2) Petitioner's first M otion to Resubmit an Incorporated Memorandum of Law Supporting the Currently Pending 2255, Petition 20 is DENIED; Petitioner's second Motion to Resubmit an Incorporated Memorandum of Law Supporting the Currently Pending 2255, Petition 22 , is also DENIED; 4) The Magistrate Judge's Proposed Findings and Recommended Disposition, 15 , is ADOPTED; and 5) Petitioner's 28 USC 2255 Motion to Vacate Sentence, 1 , is DISMISSED WITH PREJUDICE. (kg)

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.
ORDER ADOPTING MAGISTRATE JUDGE’S
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on the Magistrate Judge’s Proposed Findings
and Recommended Disposition (the “PFRD”), (CV Doc. 15),1 filed June 30, 2017;
Petitioner’s Objection Pursuant to Title 28 U.S.C. § 636(b)(1) (the “Objections”), (CV
Doc. 16), filed July 17, 2017; the “Forensic Psychological Diminished Capacity
Evaluation” Petitioner filed as an appendix to his Objections (the “Appendix”), (CV Doc.
18), filed July 20, 2017; Petitioner’s counsel’s Motion to Withdraw (the “Motion to
Withdraw”), (CV Doc. 17), filed July 18, 2017; Respondent United States of America’s
Sealed Response to Petitioner’s Objections to Proposed Findings and Recommended
Disposition under 18 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence by a
Person in Federal Custody (the “Response”), (CV Doc. 19), filed July 28, 2017;
Petitioner’s Denial to Government’s Crossclaims (Doc. 172) Styled as An Sealed
Response to Petitioner’s Objections to M.R.R. [sic] (the “Reply”), (CV Doc. 21), filed
August 14, 2017; and Petitioner’s first and second Motion to Resubmit an Incorporated

1

Documents referenced as “CV Doc. ___” are from case number CV 16-708 WJ/CG. Documents
referenced “CR Doc. ___” are from case number CR 12-2687 WJ.

Memorandum of Law Supporting the Currently Pending § 2255 , Petition [sic] (the
“Motions to Resubmit”), (CV Docs. 20, 22), filed August 21, 2017.
On June 30, 2017, the Magistrate Judge recommended that Petitioner‘s 28
U.S.C. § 2255 Motion to Vacate Sentence (the “Motion”), (CV Doc. 1), be denied and
that this case be dismissed with prejudice because Petitioner waived his right to
collaterally attack his sentence. (CV Doc. 15 at 4-10). The parties were notified that
objections were due within fourteen days. Id. at 10. Although Petitioner was represented
and his counsel did not object to the PFRD, on July 17, 2017, Petitioner filed his
Objections pro se.2 In his Objections, Petitioner claims the plea waiver is unenforceable
because his counsel deliberately misled him about the possibility of an insanity defense
at trial. (CV Doc. 16 at 1-3). Based on Petitioner’s claim of ineffective assistance of
counsel, Petitioner’s counsel filed a Motion to Withdraw. (CV Doc. 17).
In its Response to Petitioner’s Objections, Respondent argues the Court should
liberally construe Petitioner’s Objections as an amendment to his original Motion and
decide the merits of Petitioner’s ineffective assistance claim. (CV Doc. 19 at 1-2).
Petitioner replied to the Response; however the Reply is not properly before the Court
because the rules of procedure do not allow for replies to objections to PFRDs. See 28
U.S.C. § 636(b); FED. R. CIV. P. 72(b) (allowing objections and responses, but not
replies). Finally, Petitioner filed Motions to Resubmit, in which he reiterates his conflict
with counsel and asks the Court to provide him with copies of counsel’s drafts of the §
2255 Motion so that he may review and possibly amend them. (CV Doc. 20, 22 at 1-2).

2

Petitioner’s Objections were mailed on July 13, 2017, (see CV Doc. 16 at 4), so they are considered
timely filed under the prison mailbox rule. Price v. Philpot, 420 F.3d 1158, 1163-65 (10th Cir. 2005)
(holding that, under this rule, a prisoner's submission is deemed filed when it is given to prison authorities
for mailing).

2

After a de novo review of the record and the PFRD, the Court: (1) overrules
Petitioner’s Objections; (2) grants Petitioner’s counsel’s Motion to Withdraw; (3) denies
Petitioner’s Motions to Resubmit; and (4) adopts the Magistrate Judge’s PFRD and (5)
dismisses this case with prejudice.
I.

Background
On October 23, 2012, Petitioner was charged with: (1) armed bank robbery and

putting the life of a person in danger by using a dangerous weapon, in violation of 18
U.S.C. §§ 2113(a) and (d); and (2) 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). 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).

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On June 25, 2016, Petitioner requested review of his conviction pursuant to the
Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015). (CV
Doc. 1). The Court referred this matter to Judge Garza to conduct analysis and to make
findings of fact and a recommended disposition. (CV Doc. 14). The Magistrate Judge
concluded that the appellate waiver in Petitioner’s plea agreement is enforceable, and
recommended that Petitioner’s Motion be denied. (CV Doc. 15 at 10).
II.

The PFRD and Petitioner’s Objections
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).3
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.” United States 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
3

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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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. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001) (“In this circuit, theories raised
for the first time in objections to the magistrate judge’s report are deemed waived.”).
In this case, Petitioner contends that his conviction for violating § 924(c)(3)(B)
violates his right to due process. (CV Doc. 1 at 2). 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). Id. 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. Id. at 3-7. Therefore, Petitioner claims, armed bank robbery is not a crime of
violence and his conviction and sentence must be vacated. Id. at 11.
After considering the evidence in the record and the relevant law, the Magistrate
Judge determined that Petitioner’s collateral attack falls within the scope of his appellate
waiver, Petitioner knowingly and voluntarily waived his right to collateral review, and that
enforcing the waiver would not result in a miscarriage of justice. (CV Doc. 15 at 4-10).
Petitioner argued that the waiver was unlawful because it would result in Petitioner
serving an unconstitutional sentence. (CV Doc. 12 at 11-14). The Magistrate Judge
explained that, under United States v. Frazier-LeFear, 665 Fed. Appx. 727 (10th Cir.
2016) (unpublished), the waiver itself must be unlawful, not some other aspect of the
proceeding, including the sentence. (CV Doc. 15 at 8). Accordingly, the Magistrate
Judge recommended that Petitioner’s Motion be denied. Id. at 10.

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a. The Objections and Response
In his Objections, Petitioner contends that the plea waiver is unenforceable
because his counsel was ineffective. (CV Doc. 16 at 1). Construed liberally, Petitioner
claims his counsel was ineffective by failing to raise an insanity defense.4 Id. 16 at 1.
Petitioner cites the Appendix as proof he was suffering from a mental disease or defect
rendering him unable to differentiate between right and wrong. Id. at 2. Therefore,
Petitioner argues, his counsel was ineffective by “misrepresenting the possibility of the
insanity defense in New Mexico, under the State law.” Id. at 1. Regarding the plea
waiver, Petitioner claims “Defense counsel deliberately misrepresented the possibility of
the ‘temporary insanity’ defense to deceive [Petitioner] into entering a plea agreement.”
Id. at 2. Petitioner’s “decision to enter the guilty plea rested on the misadvice [sic] of
counsel.” Id. At the end of his Objections, Petitioner provides a notarized affidavit that
he asked his counsel to enter a plea of not guilty by reason of insanity and was told it
was not available. Id. at 3. Accordingly, Petitioner asserts, the plea waiver was not
knowingly or voluntarily waived, and it would be a miscarriage of justice to enforce the
waiver. Id. at 2.
In response, Respondent states that the Court may construe Petitioner’s
Objections as an amendment to his Motion. (CV Doc. 19). According to Respondent,
when a pro se petitioner files a second motion under § 2255 while his first motion is still
pending, courts often treat the second motion as a motion to amend the first. Id. at 7
(citing U.S. v. Sellner, 773 F.3d 927, 931-32 (8th Cir. 2014)). Rather than argue whether
or not leave to amend should be granted, Respondent argues the merits of Petitioner’s

4

The Court must liberally construe a pro se party’s 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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claim. Respondent contends that Petitioner’s ineffective assistance of counsel claim
fails to satisfy the two-part test set forth in Strickland v. Washington, 466 U.S. 668
(1987), because Petitioner fails to establish that his counsel’s performance was
deficient and that he was prejudiced as a result. Id. at 1. Respondent cites the
procedural history of Petitioner’s underlying criminal case as evidence that Petitioner’s
defense counsel was aware of Petitioner’s mental health issues and the potential
defenses available to Petitioner, and that they communicated with Petitioner about
these defenses. Id. at 9, 12-15. Additionally, Respondent contends that Petitioner fails
to present any evidence supporting his claim that his counsel intentionally deceived
Petitioner about his mental health defense. Id. at 9. Respondent notes that the Court
appointed attorney Charles J. McElhinney as co-counsel for the specific purpose of
aiding him in his decision making and providing him with a second opinion on whether
he should go to trial or accept a plea. Id. at 9; see (CR Docs. 130, 140). As explained
below, whether the Court treats the Objections as objections or a motion to amend,
Petitioner is not entitled to relief.
a. Construed as Objections
As explained, theories raised for the first time in objections are deemed waived.
See Marshall, 75 F.3d at 1426; Garfinkle, 261 F.3d at 1031 (“In this circuit, theories
raised for the first time in objections to the magistrate judge’s report are deemed
waived.”). In the Motion, Petitioner argued only that the plea waiver was unenforceable
because it would result in him serving an unlawful sentence. (CV Doc. 12 at 11-14).
Petitioner now argues that the plea waiver is unlawful because he was “deceived” into
entering the plea. (CV Doc. 16 at 2). Petitioner has waived this theory, as it has been

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raised for the time in the Objections. Accordingly, construed as objections, Petitioner’s
Objections are overruled.
Furthermore, Petitioner’s Objections and Respondent’s Response distract from
the substance of Petitioner’s Motion. Petitioner’s initial challenge was that bank robbery
in violation of 18 U.S.C. §§ 2113(a) and (d) is not a crime of violence under § 924(c).
(CV Doc. 1 at 1). However, overwhelming authority, including from this Court and the
Tenth Circuit Court of Appeals, has held that federal bank robbery is a crime of
violence. See U.S. v. McGuire, 678 Fed. Appx. 643 (10th Cir. 2017) (unpublished)
(denying a certificate of appealability from district court’s decision that federal bank
robbery is a crime of violence under United States Sentencing Guidelines § 4B1.1(B)
(1993)); U.S. v. Ybarra, No. 16-0563 MV/KBM, 2017 WL 3189555 (D.N.M. July 25,
2017) (unpublished) (holding federal bank robbery a “violent felony” under the Armed
Career Criminal Act); see also U.S. v. McNeal, 818 F.3d 141, 151-154, 157 (concluding
armed bank robbery is a crime of violence for purposes of § 924(c)); In re Sams, 830
F.3d 1234 (11th Cir. 2016) (same); U.S. v. Brewer, 848 F.3d 711 (5th Cir. 2017)
(holding federal bank robbery a crime of violence under the Sentencing Guidelines);
U.S. v. Williams, 864 F.3d 826 (7th Cir. 2017) (holding federal bank robbery a crime of
violence under Sentencing Guidelines § 4B1.2(a)); U.S. v. Ellison, No. 16-1460, __ F.3d
__, 2017 WL 3276797 (1st Cir. Aug. 2, 2017) (same); U.S. v. Campbell, No. 15-3869,
__ F.3d __, 2017 WL 3223925 (7th Cir. July 31, 2017) (same). Thus, even if the Court
set aside the collateral attack waiver in Petitioner’s plea agreement, Petitioner is not
entitled to relief on the merits of his Motion because federal bank robbery is a crime of
violence.

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b. Construed as a Motion to Amend
If Petitioner’s Objections are interpreted as a motion to amend, Petitioner is not
entitled to leave to amend for two reasons. First, Petitioner’s Objections were filed after
the one-year statute of limitations set forth in the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”). This statute imposes a “1-year period of limitation” on §
2255 motions that “shall run from the latest of:” (1) the date of final judgment; (2) the
date the illegal impediment that prevented the petitioner from filing his petition was
removed; (3) the date the Supreme Court recognized a new right “retroactively
applicable to cases on collateral review;” or (4) the date additional facts to support the
claim “could have been discovered through the exercise of due diligence.” 28 U.S.C. §
2255(f)(1)-(4). Petitioner’s § 2255 Motion under Johnson invokes subsection (3).
However, Johnson was decided on June 26, 2015, and Petitioner filed his Objections on
July 17, 2017, which is more than a year after AEDPA’s one-year limitation period had
expired.
A district court has discretion under FED. R. CRIM. P. 15(c) to permit an otherwise
untimely amendment to a pending § 2255 motion when the new claim provides
additional facts that “clarif[y] or amplif[y] a claim or theory in the original motion . . . if
and only if the [original motion] was timely filed and the proposed amendment does not
seek to add a new claim or to insert a new theory into the case.” United States v.
Espinoza-Saenz, 235 F.3d 501, 505 (10th Cir. 2000). It is not enough that the proposed
amendment merely relates to the same trial, conviction, or sentence. See Mayle v.
Felix, 545 U.S. 644, 656–64 (2005). Instead, the proposed amendment must be “tied to
a common core of operative facts.” Id. at 664. Here, Petitioner’s allegations of

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ineffective assistance of counsel do not clarify or amplify his § 2255 Motion, which
sought review of his sentence solely based on the holding of Johnson. Therefore, the
Court finds that Petitioner’s Objections, if construed as a motion to amend, are untimely.
See Espinoza-Saenz, 235 F.3d at 504-05 (holding that untimely amendment to § 2255
motion did not relate back to the original, timely-filed motion because it raised new
claims of ineffective assistance of counsel); United States v. Burbage, 280 Fed. Appx.
777, 782-82 (10th Cir. 2008) (unpublished) (finding the petitioner’s motion to amend his
§ 2255 petition untimely because it was filed after the magistrate judge had entered a
proposed findings and recommended disposition); Pallotino v. City of Rio Rancho, 31
F.3d 1023, 1026 (10th Cir. 1994) (“We have often found untimeliness alone a sufficient
reason to deny leave to amend, especially when the party filing the motion has no
adequate explanation for the delay.”).
Second, Petitioner’s Objections, if construed as a leave to amend, fail to state a
claim for relief. While leave to amend “shall be freely given when justice so requires,” a
motion to amend may be denied if the amendment would be futile; that is, if the
proposed amendment would be subject to dismissal. Anderson v. Suiters, 499 F.3d
1228, 1238 (10th Cir. 2007). In order to survive a motion to dismiss, a complaint must
state “sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
Because he filed his Objections pro se, the Court must liberally construe
Petitioner’s pleadings. Northington v. Jackson, 973 F.3d 1518, 1520-21 (10th Cir. 1992);
Hall v. Belmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, a “broad reading” of

10

Petitioner’s pleadings “does not relieve [him] of the burden of alleging sufficient facts on
which a recognized legal claim could be based.” Hall, 935 F.3d at 1110. On the
contrary, “conclusory allegations without supporting factual averments are insufficient to
state a claim on which relief can be based.” Id. (citations omitted); see Northington, 973
F.3d at 1520 (stating “the court should dismiss claims which are supported only by
vague or conclusory allegations”). “This is so because a pro se plaintiff requires no
special legal training to recount the facts surrounding his alleged injury, and he must
provide such facts if the court is to determine whether he makes out a claim on which
relief may be granted.” Id.
In order to state a claim for ineffective assistance of counsel, Petitioner must
allege that counsel’s performance was constitutionally deficient and that his counsel’s
deficient performance prejudiced him. Strickland, 466 U.S. at 687-692. When a plea
agreement is involved, the defendant must show that “but for counsel’s errors, he would
not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474
U.S. 52, 59 (1985). A defendant’s “mere allegation” that would have insisted on going to
trial is insufficient. Miller v. Champion, 262 F.3d 1066, 1072 (10th Cir. 2001) (quoting
U.S. v. Gordon, 4 F.3d 1567, 1571 (10th Cir. 1993)).
Here, Petitioner claims he was prejudiced by his counsel’s “incompetence of
relevant laws to provide an adequate defense.” (CV Doc. 16 at 1). Further, Petitioner
contends he was deceived, misadvised, and misinformed. Id. at 1-2. Petitioner supports
these assertions with his affidavit stating he asked about an insanity defense and was
told it was “not available in [his] instance.” Id. at 3. Petitioner also alleges his counsel
deliberately misinformed him to prevent him from going to trial. Id.

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In resolving this issue, the Court has liberally construed Petitioner’s allegations
and accepted his factual statements as true. Still, the Court finds Petitioner’s pleadings
insufficient to state a claim under Strickland and Hill. Petitioner supports his claim with
only vague, conclusory allegations that his counsel deliberately misinformed him in
order to prevent him from going to trial, or alternatively that her incompetence as to the
insanity defense prejudiced him. (CV Doc. 16 at 1-2). Petitioner’s vague statement in his
affidavit that he was told the insanity defense was “not available in [his] instance” fails to
support Petitioner’s allegations that his counsel was either ignorant of the availability of
the defense or intentionally deceived Petitioner in order to force him to plead guilty. It is
not reasonable to infer constitutionally deficient representation from the fact that
Petitioner was told an insanity defense was not “available” to him. Finally, Petitioner
does not claim that he would have insisted on going to trial if the insanity defense were
available. Petitioner therefore fails to state a claim under Strickland and Hill, and his
amendment to his complaint would be futile. Thus, even if the Court construes
Petitioner’s Objections as a motion to amend his original Motion, the Court denies leave
to amend.
III.

Motion to Withdraw
As discussed, on July 18, 2017, Petitioner’s counsel, Kari Converse, filed a

motion to withdraw as counsel of record for Petitioner. (CV Doc. 17). Ms. Converse
cites the conflict created by Petitioner’s Objections, asks for leave to withdraw, and
requests CJA counsel be appointed for Petitioner. Id. at 1. Respondent did not take a
position on the Motion to Withdraw, and Petitioner himself has not responded.
Recognizing the manifest conflict Petitioner has created by claiming his counsel was

12

ineffective, the Court will grant the Motion to Withdraw and direct the clerk to appoint
CJA counsel for Petitioner.
IV.

Petitioner’s Motions to Resubmit
On August 7 and 21, 2017, Petitioner filed documents titled Motion to Resubmit

an Incorporated Memorandum of Law Supporting the Currently Pending § 2255,
Petition. (CV Docs. 20, 22). The two Motions to Resubmit are identical except that the
second is signed. In the Motions to Resubmit, Petitioner asks the Court to order the
clerk to provide him copies of his counsel’s pleadings so he may review and possibly
revise them. (CV Doc. 22 at 1). Petitioner claims his counsel “refused” to consider
pursuing an insanity defense, and asks the clerk to provide him copies of counsel’s draft
of the § 2255 Motion and allow him thirty days to review and amend it. Id. at 2.
Petitioner appears to be attempting to re-litigate his Motion after the Magistrate Judge
recommended denying it. To the extent Petitioner is asking to amend the Motion, the
Court denies that request for the same reasons articulated above. Petitioner has not
provided any factual support for his conclusory claim that his counsel “refused” to
consider an insanity defense. Accordingly, the Court will deny the Motions to Resubmit.
V.

Conclusion
For the foregoing reasons, the Court finds that the Magistrate Judge conducted

the proper analysis and correctly concluded that Petitioner’s claims should be dismissed
with prejudice. Petitioner’s objections are overruled.
For the reasons stated above, IT IS HEREBY ORDERED that:
1) Petitioner’s counsel’s Motion to Withdraw, (CV Doc. 17) is GRANTED and the
Clerk is directed to appoint CJA counsel for Petitioner;

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2) Petitioner’s first Motion to Resubmit an Incorporated Memorandum of Law
Supporting the Currently Pending § 2255, Petition, (CV Doc. 20) is DENIED;
3) Petitioner’s second Motion to Resubmit an Incorporated Memorandum of Law
Supporting the Currently Pending § 2255, Petition, (CV Doc. 22), is also
DENIED;
4) The Magistrate Judge’s Proposed Findings and Recommended Disposition,
(CV Doc. 15), is ADOPTED; and
5) Petitioner’s 28 U.S.C. § 2255 Motion to Vacate Sentence, (CV Doc. 1), is
DISMISSED WITH PREJUDICE.

______________________________
UNITED STATES DISTRICT JUDGE

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