Thyberg v. United States of America
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION as to 1 , 5 , and 15 by Magistrate Judge William P. Lynch. Objections to PFRD due by 6/26/2017. 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).) (ph)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA,
No. CV 16-613 RB/WPL
No. CR 08-2897 RB
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
Matthew Thyberg, through appointed counsel, filed a Petition to Correct His Illegal
Sentence Pursuant to 28 U.S.C. § 2255. (CV Doc. 1; CR Doc. 113.)1 He argues that the Supreme
Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), disqualifies the two New
Mexico convictions for aggravated assault with a deadly weapon used to enhance his sentence
under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B), and entitles him to
resentencing. (Doc. 1 at 1.) Thyberg later filed a pro se § 2255 petition (Doc. 5), and through
counsel a Motion to Allow Amendment of Petition (Doc. 15), to which the United States filed a
response (Doc. 16). Because his claims may be resolved on the record alone, I have not
conducted an evidentiary hearing. I recommend the Court deny both § 2255 petitions and the
motion to amend.
Thyberg pleaded not guilty to an indictment charging him with a single count of being a
felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). (CR Docs.
2 at 2; 14 at 1.) He proceeded to a jury trial with appointed counsel and was found guilty of
Documents filed in both cases are cited by their docket number in the civil case.
being a felon in possession of a firearm on September 17, 2009. (CR Docs. 21-1 at 2; 66 at 1; 70
The Presentence Report (“PSR”) classified Thyberg as an armed career criminal under 18
U.S.C. § 924(e)(1) using the following three violent felony predicate convictions: (1) aggravated
assault with a deadly weapon in violation of NMSA § 30-3-2(A) (1978) in case number CR-96264; (2) aggravated assault with a deadly weapon in violation of NMSA § 30-3-2(A) and
conspiracy to commit 3rd or 4th degree felony2 in case number CR-2000-158; and (3) residential
burglary3 in case number CR-2003-196. (Doc. 11-1 at 4, 6; Doc. 1 at 5.) Thyberg’s total offense
level was 33 (Doc. 11-1 at 6); his criminal history category was VI (id. at 19); and his guideline
imprisonment range was 235 to 292 months (id.). On January 14, 2010, the Honorable Robert C.
Brack sentenced Thyberg to a term of 260 months imprisonment. (CR Doc. 81 at 2.)
On June 21, 2016, Thyberg, via appointed counsel, filed his § 2255 petition. (Doc. 1.)
Two days later, on June 23, 2016, he mailed a pro se § 2255 petition to the Court, which was
received on June 27, 2016. (Doc. 5 at 18-19.)
On July 21, 2016, the United States filed an Unopposed Motion to Stay, stating that “the
issue raised by the defendant is presently pending before the Tenth Circuit” in United States v.
Maldonado-Palma. (Doc. 9 at 1.) I granted the motion and stayed the case. (Doc. 10.)
Three months after the stay, on October 25, 2016, the Tenth Circuit issued its decision in
Maldonado-Palma, 839 F.3d 1244 (10th Cir. 2016). The United States then filed an Unopposed
Motion to Reinstitute § 2255 Proceedings and Set Response Deadline. (Doc. 12.) I granted the
motion and set the response deadline. (Doc. 13.)
Neither the PSR nor the briefing includes a citation to the specific section of the NMSA.
Neither the PSR nor the briefing includes a citation to the specific section of the NMSA.
On November 29, 2016, Thyberg filed a Motion to Allow Amendment of Petition. (Doc.
15). The motion, “[w]ithout waving the arguments” in the initial petition, “requests that he be
permitted to amend his petition for the purposes of including a second argument”—i.e., “whether
New Mexico’ [sic] burglary statute can be used to enhance a sentence under the Armed Career
Criminal Act”—because the “crux” of his operative petition “is the same as that in [MaldonadoPalma],” which is a decision that “cuts against” his argument. (Id. at 1.) Curiously, the motion
contains no discussion of the legal standard for granting a motion to amend a § 2255 petition.
(See id. at 1-2.) The United States filed a response, arguing, among other things, that Tenth
Circuit case law forbids amendment in this circumstance. (Doc. 16 at 3-4.)
I address Thyberg’s later filed motions—the pro se § 2255 petition and motion to
amend—first because their resolution bears on the resolution of his initial § 2255 petition.
Thyberg’s pro se § 2255 petition is of no effect because it violates D.N.M.LR-Civ. 83.5.
The rule states that “[a] party who is represented by an attorney may not personally make any
filings, other than a notice of appeal, or represent himself or herself unless otherwise ordered.”
D.N.M.LR-Civ. 83.5. Because neither exception applies, the later filed petition should be
As for Thyberg’s motion to amend, it must be denied because his counsel failed to attach
a copy of the new petition (see Doc. 15), which violates D.N.M.LR-Civ. 15.1, which states that
“[a] proposed amendment to a pleading must accompany the motion to amend.”
Nevertheless, I address the merits of Thyberg’s motion to amend because, even if he
follows the local rule and resubmits the motion, it should be denied. The inquiry begins with
examining the timeline of the Johnson decision relative to the motion to amend and limitation
period in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). AEDPA
imposes a “1-year period of limitation” on § 2255 petitions 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). Thyberg’s petition under Johnson invokes subsection (3). Comparing the date
Johnson was decided— June 26, 2015, see 135 S. Ct. 2551 (2015)—with the date Thyberg filed
his motion to amend—November 29, 2016 (Doc. 15)—reveals that the motion was filed five
months after AEDPA’s one-year limitation period had expired.
Motions to amend in this posture are considered under Federal Rule of Civil Procedure
15(c)(1)(B), which states that “[a]n amendment to a pleading relates back to the date of the
original pleading when . . . the amendment asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out—or attempted to be set out—in the original
pleading.” See United States v. Espinoza-Saenz, 235 F.3d 501, 503 (10th Cir. 2000) (noting that
“Rule 15(c) as it relates to a § 2255 motion” was an issue of first impression in the Tenth Circuit
and crafting a new rule of law). In Espinoza-Saenz, the petitioner filed “a supplemental motion
asserting a number of ineffective assistance of counsel claims” two months after AEDPA’s oneyear limitation period had expired. Id. The district court found the motion barred by AEDPA’s
one-year limitation period and transferred it to the Tenth Circuit as a second or successive
petition. Id. The Tenth Circuit reviewed decisions from four other circuits before establishing
pursuant to Rule 15(c), an untimely amendment to a § 2255 motion which, by
way of additional facts, clarifies or amplifies a claim or theory in the original
motion may, in the District Court’s discretion, relate back to the date of 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.
235 F.3d at 505 (quotation omitted).
The court held that the district court did not abuse its discretion because the ineffective
assistance claims in the supplemental motion “were completely new” and “not clarifying”
because they were “totally separate and distinct, in both time and type, from those raised in [the]
original motion.” Id. (citation and internal quotation omitted). The final paragraph of the decision
also provided further guidance. Id. The court noted that the new rule of law should be construed
narrowly to comply with Congress’s intent in enacting the one-year limitation period in AEDPA.
Id. It reasoned that granting motions to amend under the “broad umbrella” of “a defendant’s trial
and sentencing” “would be tantamount to judicial rescission of AEDPA’s statute of limitations
Here, like in Espinoza-Saenz, Thyberg filed an untimely motion to amend asserting a
“completely new” claim that was unrelated “in both time and type” to his prior, timely filed
claims. Id. His new claim—that his conviction for residential burglary does not qualify as an
ACCA predicate—has no temporal or substantive connection to his prior claim that his
convictions for aggravated assault do not qualify as ACCA predicates. (Compare Doc. 11-1 at
10-11 (stating that the residential burglary conviction in 2004 was based on Thyberg kicking in
the side door of a residence and stealing items totaling $759) with id. at 10 (stating that the
aggravated assault conviction in 2000 was based on Thyberg punching and repeatedly stabbing a
male victim at a party).) Given that the two cases are unrelated, Thyberg’s challenge to his
burglary conviction does not clarify his challenge to his aggravated assault convictions. Also,
when considered more broadly, Thyberg’s new claim can be categorized as a challenge to his
sentencing, which is a type of amendment the Tenth Circuit expressly rejected in EspinozaSaenz. 235 F.3d at 505.
Turning to Thyberg’s initial § 2255 petition, the question is whether his prior New
Mexico felony convictions for aggravated assault qualify as violent felonies under the ACCA
and permit sentence enhancement. The ACCA mandates a fifteen-year minimum sentence for “a
person who violates [18 U.S.C. § 922(g)] and has three previous convictions . . . for a violent
felony or serious drug offense, or both.” 18 U.S.C. § 924(e)(1). It contains three separate clauses
under which a violent felony may be used as a predicate for enhancement: (1) the so-called
“elements clause,” which includes an offense that “has as an element the use, attempted use, or
threatened use of physical force against the person of another”; (2) the so-called “enumerated
offenses” clause, which lists “burglary, arson, or extortion, [or an offense that] involves the use
of explosives”; and (3) the so-called “residual clause,” which includes an offense that “otherwise
involves conduct that presents a serious potential risk of injury to another.” 18 U.S.C.
§ 924(e)(2)(B)(i),(ii). The residual clause was found unconstitutionally vague in Johnson, 135 S.
Ct. at 2563, but the Court clarified that its “decision does not call into question application of the
Act to . . . the remainder of the Act’s definition of a violent felony.” Id.
Thyberg’s sentence enhancement, then, should be upheld if his prior convictions for
aggravated assault qualify as violent felonies under either the elements clause or enumerated
offenses clause. Thyberg argues that neither is applicable, so the Court must have relied on the
unconstitutional residual clause to enhance his sentence. (Doc. 1 at 3, 11.) The United States
counters that the aggravated assault convictions qualify under the elements clause. (Doc. 14 at 35.)
As noted by the United States in its motion to stay, the Tenth Circuit addressed a similar
circumstance in Maldonado-Palma. There, the court examined whether the defendant’s prior
New Mexico conviction for aggravated assault under NMSA § 30-3-2(A) qualified as a crime of
violence and permitted sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii), titled
“Unlawfully Entering or Remaining in the United States.” 839 F.3d at 1245. The court
considered whether the enhancement was valid under the “elements clause” of § 2L1.2.
Id. at 1250. It employed the categorical approach to compare the elements of NMSA § 30-3-2(A)
with the elements of § 2L1.2 to determine if “the statute . . . required proof of the use, threatened
use, or attempted use of physical force.” Id. at 1247 (citation omitted). The court found a
sufficient match and held that “aggravated assault with a deadly weapon under N.M. Stat. Ann.
§ 30-3-2(A) is categorically a crime of violence under U.S.S.G. § 2L1.2” because “the
perpetrator . . . must employ the deadly weapon in committing the assault.” Id. at 1250.
Though Thyberg’s sentence was enhanced under the ACCA and not U.S.S.G. § 2L1.2,
the Tenth Circuit has “occasionally looked to precedent under one provision for guidance under
another,” “[g]iven the similarity in language between the ACCA and USSG.” United States v.
Ramon Silva, 608 F.3d 663, 671 (10th Cir. 2010). In the years since Ramon Silva, the Tenth
Circuit appears to have normalized this practice: Maldonado-Palma notes in an explanatory
parenthetical that Ramon Silva “approv[ed] use of precedents under one as guidance in
interpreting the other.” 839 F.3d at 1248.
Using the precedent from Maldonado-Palma as guidance here is appropriate because the
operative phrases in U.S.S.G. § 2L1.2 and the ACCA are nearly identical. (Compare U.S.S.G. §
2L1.2(b)(1) commentary (“‘Crime of violence’ means . . . any other offense under federal, state,
or local law that has as an element the use, attempted use, or threatened use of physical force
against the person of another”) with 18 U.S.C. § 924(e)(1) (“‘crime of violence’ means an
offense that is a felony and . . . has as an element the use, attempted use, or threatened use of
physical force against the person or property of another”).)
The case most helpful to Thyberg is United States v. Rede-Mendez, 680 F.3d 552, 560
(6th Cir. 2012), which was decided three years before Maldonado-Palma and reached the
opposite conclusion. (See Doc. 1 at 6-8.) There, the Sixth Circuit held that NMSA § 30-3-2(A)
was not categorically a violent felony under the elements clause of U.S.S.G. § 2L1.2(b) because
a defendant could commit the underlying assault verbally and merely possess, but not wield, the
deadly weapon. Rede-Mendez, 680 F.3d at 559-560. The Tenth Circuit, however, expressly
rejected Rede-Mendez in Maldonado-Palma. 839 F.3d at 1250 n.9 (“Mr. Maldonado asks us to
follow . . . Rede–Mendez . . . [but] [w]e are not persuaded by that circuit’s analysis because it did
not consider the import of New Mexico’s requirement that the deadly weapon be actively
employed in committing the assault.”).
Given the Tenth Circuit’s recent decision in Maldonado-Palma, I recommend the Court
conclude that Thyberg was correctly classified as an armed career criminal at sentencing because
his convictions for aggravated assault under NMSA § 30-3-2(A) qualify as crimes of violence
under the elements clause of the ACCA.
Thyberg’s pro se § 2255 petition (Doc. 5) is of no effect because he was represented by
counsel when he filed it, which violates the prohibition in D.N.M.LR-Civ. 83.5 against
represented parties filing pleadings. His motion to amend (Doc. 15) should be denied because his
counsel failed to attach a copy of the amended petition, which violates D.N.M.LR-Civ. 15.1, and
his new claim is totally unrelated to his prior claims, which violates the requirement in Espinoza-
Saenz that a supplemental petition clarify earlier claims. And his initial § 2255 petition (Doc. 1)
should be denied because his two prior convictions for aggravated assault with a deadly weapon
qualify as violent felonies under the elements clause of the ACCA per Maldonado-Palma.
I recommend that Thyberg’s Petition to Correct his Illegal Sentence Pursuant to 28
U.S.C. § 2255 (Doc. 1) be denied and this case be dismissed with prejudice. I further recommend
that the Court deny a Certificate of Appealability. See 28 U.S.C. § 2253(c).
THE PARTIES ARE 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.
WILLIAM P. LYNCH
UNITED STATES MAGISTRATE JUDGE
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