Bell v. United States of America

Filing 2

ORDER denying re 1 Motion to Vacate/Set Aside/Correct Sentence (2255), filed by Harold Eugene Bell. Signed by Honorable Timothy D. DeGiusti on 10/28/2016. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA,
Plaintiff,
v.
HAROLD EUGENE BELL,
Defendant.

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Case No. CR-96-84-D
(Case No. CIV-16-377-D)

ORDER
Before the Court is Defendant’s Motion to Vacate, Set Aside or Correct Sentencing
Pursuant to 28 U.S.C. § 2255 [Doc. No. 346]. Defendant, who appears through counsel,
seeks relief from a mandatory sentence of life imprisonment imposed pursuant to 21 U.S.C.
§ 841(b)(1)(A), due to a recent change in state law that affects the prior felony convictions
on which his enhanced sentence was based. The change came through a California voter
initiative, known as Proposition 47, which provided a mechanism for reclassifying certain
felony drug convictions as misdemeanors. Defendant submits papers showing he obtained
relief under Proposition 47, codified in California Penal Code § 1170.18, and three felony
convictions for cocaine possession were reduced to misdemeanor offenses on April 21, 2015.
On that date, a California court held a resentencing hearing in each of Defendant’s three prior
drug cases, and ordered Defendant’s felony sentence “recalled and set aside,” even though
it had already been completed, and imposed “a misdemeanor sentence” in its place. See
Def.’s Mot., Ex. B [Doc. No. 346-2], pp.5, 10, 15 (ECF page numbering). These same three

felony convictions formed the basis for enhancement of Defendant’s prison sentence in this
case by the sentencing judge, Honorable Ralph G. Thompson, who imposed a mandatory life
sentence on May 1,1997.
The government has responded in opposition to the Motion, arguing only that
Defendant’s § 2255 claim lacks merit. The government does not disagree with Defendant’s
position that his Motion is not a second or successive motion, subject to the requirements of
§ 2255(h), because the factual basis for relief did not previously exist. See In re Weathersby,
717 F.3d 1108, 1111 (10th Cir. 2013) (if state convictions used to enhance a federal sentence
were vacated after defendant’s first § 2255 proceeding was concluded, a new § 2255 claim
based on the vacatur was not “second or successive” under § 2255(h)). The government also
does not disagree with Defendant’s assertion that the Motion was timely filed within one year
after the claim arose. See 28 U.S.C. § 2255(f)(4). Based on the government’s implicit
concession that these procedural prerequisites are met, the Court proceeds directly to
consideration of the merits of Defendant’s § 2255 Motion.
The United States Court of Appeals for the Ninth Circuit has determined that the type
of § 2255 claim asserted by Defendant in this case lacks merit. See United States v. Diaz,
No. 10-50029, 2016 WL 5121765 (9th Cir. Sept. 21, 2016) (to be published). In Diaz, the
argument presented by a defendant, Jesse Vasquez, was summarized by the Ninth Circuit as
follows: “Vasquez argues that because he successfully petitioned in 2014 to have his 1986
conviction re-designated as a misdemeanor, that conviction no longer counts as a prior felony
conviction for purposes of § 841.” Diaz, 2016 WL 5121765 at *2. In rejecting the argument,
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the Ninth Circuit held “that Proposition 47 does not change the historical fact that Vasquez
violated § 841 ‘after two or more prior convictions for a felony drug offense [had] become
final.’” Id. at *1 (quoting 21 U.S.C. § 841(b)(1)(A)). Relying on the plain language of the
statute and its “backward looking” provision defining what triggers a sentence enhancement,
the court reasoned that “California’s actions – taken long after Vasquez’s state conviction
became ‘final’ – have no bearing on whether § 841’s requirements are satisfied.” Id. at *2-3.
The court also relied, in part, on the Tenth Circuit’s decision in United States v. Dyke,
718 F.3d 1282 (10th Cir. 2013), which reached a similar conclusion regarding a different
type of change in a prior conviction. Quoting Dyke, 718 F.3d at 1292, the Ninth Circuit
stated: “[A] state making a change to a state conviction, after it has become final, ‘does not
alter the historical fact of the [prior state] conviction’ becoming final – which is what § 841
requires. Even where a state has fully eradicated a predicate state conviction by dismissing
or expunging it – a more drastic change than merely reclassifying it as a misdemeanor – ‘as
a matter of plain statutory meaning, there [is] . . . no question’ the defendant committed his
crime ‘after a [prior state felony] conviction’ has become final.’” Diaz, 2016 WL 5121765
at *3 (citation omitted, alterations by the court in Diaz, emphasis in Dyke).
The Ninth Circuit summarized its decision as follows:
As we have explained, § 841 explicitly tells us when it applies: When a
defendant (1) commits a federal drug offense (2) after being convicted of two
or more felony drug offenses that have “become final.” 21 U.S.C.
§ 841(b)(1)(A). There is no doubt Vasquez committed a federal drug offense,
nor is there any doubt his state felony convictions “have become final.”

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We thus hold that California’s Proposition 47, offering post-conviction
relief by reclassifying certain past felony convictions as misdemeanors, does
not undermine a prior conviction’s felony-status for purposes of § 841.
California’s later actions cannot change the fact that Vasquez committed his
federal offense “after two or more convictions for a felony drug offense [had]
become final.”
Id. at *4-5.
In light of this authoritative decision by the federal court of appeals for the judicial
circuit that encompasses California, which is fully consistent with case authority from the
court of appeals whose decisions are binding on this Court, the Court finds no merit in
Defendant’s § 2255 claim based on a 2014 change in California law that allowed his prior
felony drug convictions to become misdemeanors.1 This reclassification of Defendant’s
predicate convictions, although entitled to retroactive effect under state law, does not alter
the fact that his federal sentence was imposed in 1997 based on his commission of a federal
drug offense after three felony drug convictions had become final.
IT IS THEREFORE ORDERED that Defendant’s Motion to Vacate, Set Aside or
Correct Sentencing Pursuant to 28 U.S.C. § 2255 [Doc. No. 346] is DENIED.2 Judgment
shall be entered accordingly.
IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing
Section 2255 Proceedings, the Court must issue or deny a certificate of appealability

1

Defendant concedes that Diaz is indistinguishable, but he argues that it is not binding authority
and was wrongly decided. See Def.’s Reply Br. [Doc. No. 349], pp.3-4.
2

No evidentiary hearing is needed where, as here, the existing record conclusively shows the
defendant is not entitled to relief. See United States v. Lopez, 100 F.3d 113, 121 (10th Cir. 1996); 28 U.S.C.
§ 2255(b).

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(“COA”) when it enters a final order adverse to a movant. A COA may issue only upon “a
substantial showing of the denial of a constitutional right.” See 28 U.S.C. §2253(c)(2). “A
petitioner satisfies this standard by demonstrating that jurists of reason could disagree with
the district court’s resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003); see Slack v. McDaniel, 529 U.S. 473, 484 (2000). Upon
consideration, the Court finds this standard is not met in this case. The court of appeals
recently determined in United State v. McGee, 625 F. App’x 847 (10th Cir. 2015), that a
§ 2255 claim like Defendant’s – based on Proposition 47’s reduction of felony drug
convictions to misdemeanors – did not involve the denial of a constitutional right, but the
construction and application of 21 U.S.C. § 841, and did not provide a basis for a COA
regarding the denial of relief under § 2255. Id. at 851. In light of McGee, the Court is
persuaded that Defendant’s § 2255 claim does not satisfy the criteria for issuance of a COA.
Therefore, a COA is denied, and the denial shall be included in the judgment.
IT IS SO ORDERED this 28th day of October, 2016.

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