Moreno v. United States of America

Filing 4

MEMORANDUM OPINION AND ORDER by Senior District Judge James A. Parker dismissing 1 Motion to Vacate/Set Aside/Correct Sentence (2255 under Johnson v. USA) and Certificate of Appealability is Denied and judgment to be entered. (bap)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA,
Plaintiff,
v.

No. 16-CV-00752-JAP-CG
No. 12-CR-000694-JAP

MARTIN MORENO,
Defendant.

MEMORANDUM OPINION AND ORDER OF DISMISSAL
This matter is before the Court, sua sponte under rule 4(b) of the Rules Governing Section
2255 Proceedings for the United States District Courts, on Defendant Martin Moreno’s Motion
Under 28 U.S.C. § 2255 To Vacate, Set Aside, or Correct Sentence By A Person in Federal
Custody, filed on June 29, 2016. [CV Doc. 1; CR Doc. 113] Defendant contends that his
sentence is invalid in light of the United States Supreme Court’s holding in Johnson v. United
States, 135 S. Ct. 2551 (2015). For the reasons explained below, Defendant’s “second or
successive” § 2255 motion will be dismissed for lack of jurisdiction, a certificate of appealability
will be denied, and judgment will be entered.
Defendant was charged in a Second Superseding Indictment with:

(1) Count

1—possession with intent to distribute 50 grams and more of methamphetamine, in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(A); (2) Count 2—possession with intent to distribute 500 grams
and more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B); (3) Count
3—possession with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(D); (4) Count 4—possession of a firearm in furtherance of a drug trafficking crime, in
violation of 18 U.S.C. § 924(c); (5) Counts 5 - 7—felon in possession of a firearm in violation of
18 U.S.C. §§ 922(g)(1) and 924(a)(2). [CR Doc. 78] Defendant and the Government entered into
a plea agreement, in which Defendant agreed to plead guilty to all seven counts of the Second
Superseding Indictment and the parties stipulated and agreed “pursuant to Fed. R. Crim. P.
11(c)(1)(C) that the sentence in this case shall be incarceration for a period of 180 months.” [Doc.
88 at 5] The Court accepted Defendant’s guilty plea and the plea agreement and sentenced
Defendant to a total term of 180 months of imprisonment and five years of supervised release. 1
[CR Docs. 88 at 93] The Court rendered judgment on Defendant’s conviction and sentence on
November 6, 2013. [CR Doc. 93]
On November 3, 2014, Defendant filed a Motion Under 28 U.S.C. § 2255 To Vacate, Set
Aside, or Correct Sentence By A Person In Federal Custody, alleging ineffective assistance of
counsel. [CR Doc. 96; see Moreno v. United States, 14-CV-00997-JAP-GBW, Doc. 1 (D.N.M.
November 3, 2014)] The Court rejected Defendant’s ineffective assistance of counsel claims and
denied his § 2255 motion. [CR Docs. 111, 112]
On June 29, 2016, Defendant filed the present § 2255 motion, which seeks sentencing
relief pursuant to Johnson, 135 S. Ct. 2551. [CV Doc. 1; CR Doc. 113] This is Defendant’s
second § 2255 motion and “[a] district court does not have jurisdiction to address the merits of a
second or successive § 2255 or 28 U.S.C. § 2254 claim until [the United States Court of Appeals
1

The Court sentenced Defendant to 120 months of imprisonment on Counts 1, 2, 5, 6, and 7 of the Second
Superseding Indictment, said terms to run concurrently. With respect to Count 3 of the Second Superseding
Indictment, the Court sentenced Defendant to 60 months of imprisonment, said term to run concurrently to Counts 1,
2, 5, 6, and 7. With respect to Count 4 of the Second Superseding Indictment, the Court sentenced Defendant to 60
months imprisonment, said term to run consecutively to all other terms of imprisonment, for a total term of 180
months of imprisonment. [Doc. 93 at 3] The Court also imposed five years of supervised release as to each of the
seven Counts of the Second Superseding Indictment, said terms to run concurrently, for a total term of five years of
supervised release. [Doc. 93 at 4]

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for the Tenth Circuit] has granted the required authorization.” In re Cline, 531 F.3d 1249, 1251
(10th Cir. 2008) (per curiam); see § 2255(h). A district court may, however, “transfer the matter
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 § 1631.” In re Cline, 531 F.3d at 1252; see 28 U.S.C. § 1631.
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.
In re Cline, 531 F.3d at 1251. However, “[w]here 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 to [the Court of Appeals] 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 by the Supreme Court, that was previously
unavailable.
§ 2255(h).
Defendant’s § 2255 motion seeks sentencing relief pursuant to Johnson, which established
a new rule of constitutional law that the Supreme Court has made retroactive to cases on collateral
review. See Welch v. United States, 136 S. Ct. 1257 (2016); see also In re Encinias, 821 F.3d
1224 (10th Cir. 2016) (authorizing a second or successive § 2255 motion seeking sentencing relief
pursuant to Johnson). Nonetheless, the Court concludes that Defendant’s § 2255 motion lacks
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merit because Defendant plainly is not entitled to relief under Johnson.
In Johnson, the Supreme Court considered whether the residual clause of the Armed
Career Criminal Act (ACCA) violates the due process clause of the United States Constitution. In
general, the maximum term of imprisonment for a defendant convicted of being a felon in
possession of a firearm is ten years. See 18 U.S.C. § 924(a)(2). “But if the violator has three or
more earlier convictions for a ‘serious drug offense’ or a ‘violent felony,’ the Armed Career
Criminal Act increases his prison term to a minimum of 15 years and a maximum of life.”
Johnson, 135 S.Ct. at 2555 (quoting § 924(e)(1)). The ACCA defines a “violent felony” as:
any crime punishable by imprisonment for a term exceeding one
year . . . that—
(i) has an element the use, attempted use, or threatened use of
physical force against the person of another, or
(ii) is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of
physical injury to another
§ 924(e)(2)(B) (emphasis added). The Court held that the residual clause of § 924(e)(2)(B)(ii),
which is the italicized portion excerpted above, “denies fair notice to defendants and invites
arbitrary enforcement by judges.” Johnson, 135 S. Ct. at 2557. Therefore, “imposing an
increased sentence under the residual clause of the Armed Career Criminal Act violates the
Constitution’s guarantee of due process.” Id. at 2563.
In United States v. Madrid, 805 F.3d 1204, 1210 (10th Cir. 2015), the United States Court
of Appeals for the Tenth Circuit held that the Supreme Court’s decision in Johnson was applicable
to the residual clause definition of a “crime of violence” in the “career offender” provision of the
United States Sentencing Guidelines, § 4B1.1. See U.S.S.G. § 4B1.2(a)(2) (defining a “crime of
violence,” in relevant part, as a crime that “otherwise involves conduct that presents a serious
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potential risk of physical injury to another.”). The Court stated that “[t]he concerns about judicial
inconsistency that motivated the Court in Johnson, lead us to conclude that the residual clause of
the Guidelines is also unconstitutionally vague. If one iteration of the clause is unconstitutionally
vague, so too is the other.” 2
In the present case, Defendant’s sentence was not enhanced under the ACCA or under the
career-offender provision of the U.S.S.G. Defendant was convicted, however, of a violation of §
924(c) and the Court recognizes that the residual clause definition of a “crime of violence” in §
924(c)(3)(B) is similar to the residual clause definition of a “violent felony” in the ACCA.
Compare § 924(c)(3)(B), with § 924(e)(2)(B). Nonetheless, the Court need not address whether
the holding in Johnson is applicable to the residual clause definition of a “crime of violence” in §
924(c)(3)(b), because Defendant’s § 924(c) conviction was not based on a “crime of violence,” but
rather on a “drug trafficking crime.” [See CR Docs. 78, 88, 93] The holding in Johnson did not
affect the definition of a “drug trafficking crime” in § 924(c) 3 and, therefore, Defendant’s § 2255
motion lacks merit. See United States v. Teague, No. 16-7056, 2016 WL 4400069, at *1 (10th
Cir. August 17, 2016) (recognizing that “[a] portion of the definition of ‘crime of violence’
contained in 18 U.S.C. § 924(c)(3)(B) is similar to ACCA’s residual clause,” but nonetheless
holding that the defendant’s sentence “is unaffected” by Johnson because he was “convicted of
possessing a firearm during and in relation to a drug trafficking crime under § 924(c)—not a
‘crime of violence’”) (unpublished); see also United States v. Pitt, No. 16-8078, 2017 WL 117119,

2

The United States Court of Appeals for the Tenth Circuit has not yet determined whether Johnson applies
retroactively on collateral review to the residual clause definition of a “crime of violence” in the U.S.S.G. That
question currently is pending before the United States Supreme Court in Beckles v. United States, No. 15-854.
3
See 18 U.S.C. § 924(c)(2) (defining a “drug trafficking crime” as “any felony punishable under the Controlled
Substances Act (21 U.s.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or
chapter 705 of title 46”).

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at *1 (10th Cir. January 12, 2017) (holding that because the defendant’s § 924(c) conviction “was
based on a ‘drug trafficking crime,’ not a ‘crime of violence,’ . . . Johnson does not apply”)
(unpublished). Accordingly, a transfer to the United States Court of Appeals for the Tenth Circuit
is not in the interest of justice and Defendant’s second or successive § 2255 motion will be
dismissed for lack of jurisdiction.
For the reasons explained above, the Court determines, under rule 11(a) of the Rules
Governing Section 2255 Proceedings for the United States District Courts, that Defendant has
failed to make a substantial showing that he has been denied a constitutional right as required by
28 U.S.C. § 2253(c)(2). Therefore, the Court will deny a certificate of appealability.
IT IS THEREFORE ORDERED that Defendant’s Motion Under 28 U.S.C. § 2255 To
Vacate, Set Aside, or Correct Sentence By A Person in Federal Custody [CV Doc. 1; CR Doc. 113]
is DISMISSED; a certificate of appealability is DENIED; and judgment will be entered.

_______________________________________
UNITED STATES DISTRICT COURT JUDGE

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