Martinez v. USA

Filing 5

ORDER by Judge Ronald A. White vacating the stay previously imposed on 11/3/16 (Re: 4 Ruling on Motion to Stay), denying defendant's second or successive motion to vacate ( 1 Motion to Vacate, Set Aside or Correct Sentence (2255)) and declining to issue a certificate of appealability(lal, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
GIOVANNI MARTINEZ,
Defendant/Movant,
v.
UNITED STATES OF AMERICA,
Plaintiff/Respondent.

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Case No. CIV-16-326-RAW
Criminal Case No. CR-09-30-RAW

ORDER
On May 28, 2009, Defendant Giovanni Martinez (hereinafter “Defendant”) pleaded
guilty to Counts One and Three of the Indictment, more particularly described as follows: Count
One: Possession with Intent to Distribute Cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C); and Count Three: Felon in Possession of a Firearm, in violation of 18 U.S.C. §
922(g)(1).

Within the plea agreement, Defendant also waived certain appellate and post-

conviction rights. On February 10, 2010, the Court found Defendant was a Career Offender and
sentenced him to 188 months on Count One, and 120 months on Count Three, to be served
concurrently in the custody of the Bureau of Prisons.1 The Judgment was entered on February
16, 2010.
Now before the Court is Defendant’s second or successive motion to vacate, set aside, or
correct sentence pursuant to 28 U.S.C. § 2255 [Doc. No. 1]. Pursuant to the prison mailbox rule,
the filing date of this authorized § 2255 motion is June 21, 2016, the date the motion for
authorization was delivered to prison authorities for mailing.2 The Tenth Circuit Court of
Appeals granted authorization for Defendant to file this second or successive § 2255 motion in

1

At the sentencing, in accordance with the plea agreement, the Government dismissed
Count Two, Possession of a Firearm in Furtherance of a Drug Trafficking Crime, in violation of
18 U.S.C. § 924(c)(1)(A).
2
Pursuant to 28 U.S.C. § 2255(f)(3), Defendant's motion would be timely if Johnson
applies herein, because it was filed within one year of the Johnson decision, which announced a
new substantive rule of constitutional law. Johnson was decided by the Supreme Court on June
26, 2015.
1

district court based upon Johnson v. United States, 135 S. Ct. 2551 (2015).3 See, Order filed
July 22, 2016 in CR-09-30-RAW [Doc. No. 87]. In summary, Defendant is claiming that he is
no longer a Career Offender in light of Johnson, and that he is therefore entitled to sentencing
relief.
In Johnson, the Supreme Court held that the residual clause of the “violent felony”
definition within the Armed Career Criminal Act is unconstitutionally vague. See generally
Johnson, 135 S. Ct. 2551. In this case, however, Defendant was not sentenced as an Armed
Career Criminal under the ACCA’s residual clause. Rather, as noted in the Presentence Report
(“PSR”), Defendant was sentenced as a Career Offender, having at least two prior qualifying
offenses under § 4B1.1 of the United States Sentencing Guidelines. Defendant has a felony
conviction of a controlled substance offense, “Cannabis/Sell/Manufacture/Deliver/Possess with
Intent”, Circuit Court, Dade County, Florida, Case No. F-01-14231, and a felony conviction of a
crime of violence, “Armed Robbery” and “Armed Occupied Burglary (Vehicle)”, Circuit Court,
Dade County, Florida, Case No. F-01-28249(A). [PSR, ¶¶ 29, 47 and 48].
On August 11, 2016, the Government filed a motion herein, requesting this Court to stay
Defendant’s § 2255 motion pending the Supreme Court’s resolution of Beckles v. United States,
No. 15-8544, 136 S.Ct. 2510, 2016 WL 1029080 (June 27, 2016) (order granting certiorari).
[Doc. No. 3]. In its motion to stay, the Government provided a summary of issues to be resolved
by Beckles, along with a response to the Career Offender argument urged by Defendant herein
[Id. at 1-2]. The Government claimed this Defendant, in order to prevail, “must establish, among
other things, that Johnson’s constitutional holding applies to the residual clause definition of a
“crime of violence” in U.S.S.G. § 4B1.2’s Career Offender Guideline and that it does so
retroactively on collateral review.” [Id.]. This Court recognized Beckles would likely control
the result in this matter, and on November 3, 2016, the Government’s unopposed motion to stay
was granted [Doc. No. 4 at 3].
On March 6, 2017, the Supreme Court issued its opinion in Beckles v. United States,
___U.S.___, 137 S. Ct. 886 (2017), concluding that the U.S. Sentencing Guidelines are not
subject to a vagueness challenge under the Due Process Clause. Id. at 892. Of particular
3

The Beckles case mentioned herein had not been decided at the time the Tenth Circuit
granted authorization to file this second or successive § 2255 motion.
2

importance herein, the Beckles Court decided that the vagueness holding in the Johnson case
does not apply to the Career Offender provisions of the Sentencing Guidelines. Id. In the case at
hand, the record clearly establishes this Defendant was sentenced as a Career Offender under
§ 4B1.2 of the Sentencing Guidelines. The Beckles decision therefore controls the outcome here,
meaning Johnson does not apply and this Defendant is not entitled to sentencing relief.4
Accordingly, the stay previously imposed on November 3, 2016, is hereby vacated, and
the Defendant’s second or successive motion to vacate, set aside, or correct sentence pursuant to
28 U.S.C. § 2255 is hereby DENIED.5 Furthermore, Defendant has not made a substantial
showing of a denial of a constitutional right. 28 U.S.C. § 2253(c)(2). Therefore, pursuant to
Rule 11(a) of the Rules Governing Section 2255 Proceedings, this Court hereby declines to issue
a certificate of appealability.
It is so ordered this 10th day of April, 2017.

__________________________________________
THE HONORABLE RONALD A. WHITE
UNITED STATES DISTRICT JUDGE
EASTERN DISTRICT OF OKLAHOMA

4

See also, United States v. Ramos, No. 16-5128, ___Fed.Appx.___, 2017 WL 894428
(10th Cir. March 7, 2017) (unpublished).
5
The motion, files and records of this case conclusively show that Defendant is entitled to
no relief. Thus, no evidentiary hearing was held.
3