Alonso v. United States of America
MEMORANDUM OPINION AND ORDER by District Judge Robert C. Brack DENYING AS MOOT 8 MOTION to Appoint Counsel, AND DENYING AS MOOT 3 MOTION to Stay Proceedings Pending the Supreme Court's Decision in United States v. Beckles, DENYING AS MOOT 7 MOTION for Extension of Time to File. DENYING 1 Motion to Vacate/Set Aside/Correct Sentence (2255 under Johnson v. USA), DENYING 9 Motion to Vacate/Set Aside/Correct Sentence (2255 under Johnson v. USA); CERTIFICATE OF APPEALABILITY IS DENIED (yc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA,
No. CV 16-00771 RB/LAM
No. CR 13-02163 RB
MEMORANDUM OPINON AND ORDER OF DISMISSAL
THIS MATTER is before the Court under Rule 4 of the Rules Governing Section 2255
Proceedings on the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by
a Person in Federal Custody (CV Doc. 1, 9; CR Doc. 42, 49). The Court will dismiss Alonso’s
Motion on the grounds that (1) the Motion is untimely and (2) in light of the U.S. Supreme
Court’s decision in Beckles v. United States, 580 U.S. ___, No. 15-8544, slip op (March 6,
2017), Alonso is clearly ineligible for relief.
Alonso was indicted on counts of burglary, possession of a controlled substance, and
felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (CR Doc.
18). He pled guilty to the indictment without a written plea agreement. (CR Doc. 28). Alonso’s
sentence was enhanced under the Sentencing Guidelines § 2K2.1 based on a prior felony crime
of violence as defined in USSG § 4B1.2. PSR at ¶ 13. Alonso sought a downward departure
under USSG § 5G1.3from his sentencing guidelines advisory range of 57 to 71 months based on
a state court sentence. (CR Doc. 32). He was sentenced on April 15, 2014, to a term of
incarceration of 49 months and 26 days, to be served concurrent with the state sentence. (CR
Doc. 41). Alonso filed his § 2255 motion on July 5, 2016 (CV Doc. 1; CR Doc. 42) and an
amended motion on September 12, 2016 (CV Doc. 9; CR Doc. 49).
Alonso seeks collateral review of his sentence under 28 U.S.C. § 2255. Section 2255
“A prisoner in custody under a sentence of a court established by
Act of Congress claiming the right to be released upon the ground
That the sentence was imposed in violation of the Constitution or
Laws of the United States, or that the court was without jurisdiction
To impose such sentence, or that the sentence was in excess of the
Maximum authorized by law, or is otherwise subject to collateral
Attack, may move the court which imposed the sentence to vacate,
Set aside or correct the sentence.”
28 U.S.C. § 2255(a).
Section 2255(f) sets out the statute of limitations governing
motions for collateral review of convictions and sentences:
“A 1-year period of limitation shall apply to a motion under this
section. The limitation period shall run from the latest of—
(1) the date on which the judgment of conviction becomes
(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed,
if the movant was prevented from making a motion by such
(3) the date on which the right asserted was initially recognized
by the Supreme Court, if that right has been newly recognized
by the Supreme Court and made retroactively applicable to cases
on collateral review; or
(4) the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of
Alonso did not appeal from the judgment of conviction.
Absent a direct appeal or other
proceeding attacking his conviction or sentence, Alonso’s judgment of conviction became final
on April 29, 2014, and his July 1, 2016 filing is untimely for purposes of 28 U.S.C. § 2255(f)(1).
Clay v. United States, 537 U.S. 522, 524 (2003).
Movant Alonso is proceeding under a theory that his sentence should be vacated based on
Johnson v. United States, 135 S.Ct. 2551 (2015), and that the 1-year limitation period applicable
to his claim is the period under § 2255(f)(3). The Johnson decision was handed down by the
Supreme Court on June 26, 2015 and the deadline for filing a § 2255 motion based on Johnson
was June 27, 2016 (June 26, 2016 was a Sunday and under Fed. R. Civ. P. 6(a)(1)(C), the time
was extended to Monday, June 27). Alonso’s Motion Under 28 U.S.C. §§ 2255 was not filed
until July 1, 2016, more than one year after the Supreme Court’s decision in Johnson and
contains no certification that would give him the benefit of the prisoner mailbox rule. See Price
v. Philpot, 420 F.3d 1158, 1165-67 (10th Cir.2005); United States v. Ceballos–Martinez, 387
F.3d 1140, 1143-46 (10th Cir.2004).
Alonso’s Motion is also untimely under either § 2255(f)(1) or § 2255(f)(3). A pleading
may be subject to dismissal when an affirmative defense, such as statute of limitations, appears
on the face of the complaint or petition. Jones v. Bock, 549 U.S. 199, 214-15 (2007); Vasquez
Arroyo v. Starks, 589 F.3d 1091, 1096 (10th Cir. 2009). Because the untimeliness of Alonso’s
Motion appears on the face of the filing, the Court may dismiss his § 2255 Motion on the
grounds of untimeliness.
Further, even if Alonso’s Motion was timely, in light of the U.S. Supreme Court’s
decision in Beckles v. United States, Alonso is clearly ineligible for relief. In Johnson, the
Supreme Court held that the residual clause of the Armed Career Criminal Act (“ACCA”) is
impermissibly vague and imposing an increased sentence under the residual clause of 18 U.S.C.
§ 924(e)(2)(B) violates the Constitution’s guarantee of due process. 135 S.Ct. at 2562-2563.
Under the ACCA, a defendant convicted of being a felon in possession of a firearm faces more
severe punishment if he has three or more previous convictions for a “violent felony.” 18 U.S.C.
§ 924 (e)(2)(B). The Act defines “violent felony” to mean:
“any crime punishable by imprisonment for a term exceeding one
year . . . that—
(i) has as 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 the use of
explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.”
18 U.S.C. § 924(e)(2)(B) (emphasis added).
The Johnson Court struck down the
italicized residual clause language of § 924(e)(2)(B)(ii) as unconstitutionally vague. 135 S.Ct. at
2555-2563. In Beckles, the Supreme Court declined to extend the reasoning of Johnson to the
Instead, the Court ruled that “[b]ecause the advisory Sentencing
Guidelines are not subject to a due process vagueness challenge, § 4B1.2(a)’s residual clause is
not void for vagueness. Beckles, 580 U.S. ___, No. 15-8544, slip op at 5. Alonso challenges the
enhancement of his sentence under the USSG § 2K2.1 based on a prior felony crime of violence
as defined in USSG § 4B1.2. ( CV Doc. 9; CR Doc. 49; PSR at ¶ 13). Because the Sentencing
Guidelines are not subject to a void-for-vagueness challenge, Alonso is clearly ineligible for
relief and his Motion and Amended Motion must be dismissed under rule 4 of the Rules
Governing Section 2255 Proceedings.
Also pending before the Court are the United States’ Motion to Stay this proceeding
pending the Supreme Court’s decision in Beckles (CV Doc. 3; CR Doc. 43), Alonso’s Motion for
Extension of Time (CV Doc. 7; CR Doc. 47), and Alonso’s Motion for Appointment of Counsel
(CV Doc. 8; CR Doc. 48). The Court will deny all three pending motions as moot in light of this
Memorandum Opinion and Order.
The Court further determines, sua sponte under rule 11(a) of the Rules Governing Section
2255 Cases, that Alonso has failed to make a substantial showing that he has been denied a
constitutional right. The Court will deny a certificate of appealability.
IT IS ORDERED:
(1) the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody (CV Doc. 1, 9; CR Doc. 42, 49 is DISMISSED under rule 4 of the
Rules Governing Section 2255 Proceedings;
(2) the United States’ Motion to Stay this proceeding pending the Supreme Court’s
decision in Beckles (CV Doc. 3; CR Doc. 43), Alonso’s Motion for Extension of Time (CV Doc.
7; CR Doc. 47), and Alonso’s Motion for Appointment of Counsel (CV Doc. 8; CR Doc. 48) are
DENIED as moot; and
(3) a certificate of appealability is DENIED.
UNITED STATES DISTRICT JUDGE
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