Rith v. USA
ORDER AND MEMORANDUM DECISION granting 18 Motion to Dismiss 1 Motion to Vacate, Set Aside or Correct Sentence (2255). Signed by Judge Tena Campbell on 8/29/17 (alt)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
UNITED STATES OF AMERICA,
ORDER AND MEMORANDUM
Case No. 2:16-cv-00351
Judge Tena Campbell
In 2001, petitioner Mesa Rith pleaded guilty to assaulting a federal officer
in violation of 18 U.S.C. § 111(a)(1).
Now, more than a decade after his
judgment of conviction became final, Mr. Rith asks the court to correct his
sentence based on the United States Supreme Court’s decision in Johnson v.
United States, 135 S. Ct. 2551 (2015). Because Johnson does not apply to his
case, the court dismisses Mr. Rith’s motion as untimely.1
Mr. Rith pleaded guilty to assaulting a federal officer in 2001. Because of
a prior conviction, Mr. Rith’s sentence was enhanced under the United States
Sentencing Guidelines (Guidelines) and the court sentenced him to 96 months of
imprisonment. The court set Mr. Rith’s 96-month sentence to run consecutively
with a sentence imposed in another federal case.
Mr. Rith appealed his sentence, but the United States Court of Appeals for
the Tenth Circuit affirmed the judgment. United States v. Rith, 63 Fed. App’x
463 (10th Cir. 2003) (unpublished). In 2004, Mr. Rith moved under 28 U.S.C.
§ 2255 to have his sentence vacated. The court denied his motion. (Order &
Mem. Decision, Case No. 2:04-cv-787, ECF No. 10.) On April 29, 2016—eleven
years after Mr. Rith filed his first § 2255 motion—Mr. Rith filed a second § 2255
A hearing must be held on a § 2255 motion “unless the motion and files and
records of the case conclusively show that the prisoner is entitled to no relief.” 28
U.S.C. § 2255(b). Because the motions and records in this case conclusively
show that Mr. Rith is not entitled to relief, the court finds that a hearing is not
motion, this time seeking to have his sentence corrected after the Supreme
Court’s decision in Johnson.
The Government moves to dismiss Mr. Rith’s § 2255 motion.
Government argues, among other things, that Mr. Rith’s motion is barred by
§ 2255’s statute of limitations. Mr. Rith responds that his motion qualifies as
timely because the one-year statute of limitations restarted when the Supreme
Court decided Johnson in 2015.
“A district court is authorized to modify a Defendant’s sentence only in
specified instances where Congress has expressly granted the court jurisdiction to
do so.” United States v. Blackwell, 81 F.3d 945, 947 (10th Cir. 1996). Under 28
U.S.C. § 2255, a prisoner can move the court to vacate or correct a sentence if the
sentence was unconstitutional or otherwise illegal.
Ordinarily, a petitioner has one year to file his § 2255 motion from “the
date on which the judgment of conviction becomes final.”
§ 2255(f)(1). But when a petitioner asserts a right “recognized by the Supreme
Court and made retroactively applicable to cases on collateral review,” the one-
year period begins to run from the “date on which the right asserted was initially
recognized by the Supreme Court.” Id. at § 2255(f)(3).
Here, Mr. Rith pleaded guilty to assaulting a federal officer in 2001. The
Court sentenced Mr. Rith that same year. Though Mr. Rith appealed his sentence,
the Tenth Circuit rejected his appeal in 2003. Mr. Rith did not seek review with
the Supreme Court, nor did he seek a rehearing with the Tenth Circuit.
Accordingly, his convictions became final 90 days later—in September 2003.
See United States v. Martin, 357 F.3d 1198, 1200 (10th Cir. 2004). Absent an
event restarting the one-year statute of limitations, Mr. Rith would be time-barred
from filing a petition after September 2004. See 28 U.S.C. § 2255(f)(1).
Acknowledging that his motion would be time-barred, Mr. Rith contends
that the Supreme Court in Johnson recognized a right that was made retroactively
applicable to cases like his on collateral review. In Johnson, the Supreme Court
ruled that the residual clause of the Armed Career Criminal Act (ACCA) was
unconstitutionally vague. 135 S. Ct. at 2563. Mr. Rith asserts that because his
sentence was mandatorily enhanced under the residual clause of the Guidelines,
and because the language in the residual clause of the ACCA and the Guidelines
is identical, Johnson applies to his case.
Mr. Rith also acknowledges that the Supreme Court recently ruled in
United States v. Beckles that sentences imposed after the Supreme Court’s
decision in United States v. Booker, 543 U.S. 220 (2005)—where the Supreme
Court ruled that the Guidelines were advisory, not mandatory—are not subject to
vagueness challenges. 137 S. Ct. 886, 890 (2017). However, Mr. Rith was
sentenced before the Supreme Court decided Booker. As such, Mr. Rith argues
that Beckles does not bar Johnson’s application to pre-Booker sentencings.
To determine whether Johnson restarted the one-year statute of limitations
for Mr. Rith’s motion, the court must ask whether Mr. Rith asserts the same right
announced in Johnson, or whether he instead asserts a new right that the Supreme
Court has yet to recognize. 28 U.S.C. § 2255(f)(3). A right qualifies as “new” if
it “is not dictated by precedent.” Chaidez v. United States, 568 U.S. 342, 347
(2013) (citation and internal quotation marks omitted). A right is “dictated by
precedent” only if “it is apparent to all reasonable jurists.” Id. (citation and
internal quotation marks omitted). So the inquiry is whether Johnson dictates
invalidation of the Guidelines’ residual clause.
After reviewing Johnson, the parties’ briefing, and other caselaw, the court
concludes that Johnson does not announce the right that Mr. Rith asserts: Johnson
does not dictate invalidation of the Guidelines’ residual clause.
explicitly invalidates only the residual clause of the ACCA. 135 S. Ct. at 2563.
And Justice Sotomayor confirmed in Beckles that the Supreme Court has not yet
answered “whether defendants sentenced to terms of imprisonment before [the
Supreme Court’s] decision in United States v. Booker . . . may mount vagueness
attacks on their sentences.” Beckles, 137 S. Ct. at 903 n.4 (Sotomayor, J.,
concurring).2 Because the Supreme Court has not yet answered that question,
they have not recognized the right Mr. Rith asserts.
Mr. Rith resists this conclusion. He directs the court to United States v.
Madrid, 805 F.3d 1204 (10th Cir. 2015). There, the Tenth Circuit ruled that
Johnson invalidates the residual clause in the Guidelines. Id. at 1210. But
Madrid was explicitly overturned by Beckles. 137 S. Ct. at 892 n.2, 897. And
even if Madrid were still good law as applied to pre-Booker sentencings, in
determining whether Mr. Rith’s Johnson-based challenge qualifies as timely, the
Though this statement appears only in Justice Sotomayor’s concurring opinion,
the court is persuaded that “if a concurring opinion says that the existence of a
right remains an open question, and the majority opinion does not explicitly
address the right, then the Supreme Court did not previously announce the
existence of the same right.” Zamora v. United States, No. CR 97-488, 2017 WL
3054645, at *5 (D. N.M. June 29, 2017)
question is whether the Supreme Court has recognized the right at issue, not the
See 28 U.S.C. § 2255(f)(3) (measuring the one-year filing
deadline from “the date on which the right asserted was initially recognized by
the Supreme Court”) (emphasis added); E.J.R.E. v. United States, 453 F.3d 1094,
1098 (8th Cir. 2006) (stating that “a decision taken from a federal court of appeals
does not provide an independent basis to trigger the one year statute of limitations
provided under [§ 2255(f)(3)]”); Ellis v. United States, No. 2:16-CV-484, 2017
WL 2345562, at *2 (D. Utah May 30, 2017) (“[A] right recognized by the Tenth
Circuit is not sufficient under the terms of” § 2255(f)(3) to restart the one-year
The court’s conclusion is consistent with another decision from this
district. In United States v. Ellis, Michael Wayne Ellis challenged his pre-Booker
Guidelines enhancement under Johnson. 2017 WL 2345562, at *1. The court
dismissed Mr. Ellis’s § 2255 motion. It ruled that “the right recognized by the
Supreme Court in Johnson does not apply to Mr. Ellis’s case.” Id. at *2. The
court emphasized that Johnson invalidated the ACCA’s residual clause and “Mr.
Ellis’s sentence was increased under the residual clause of the [Guidelines], not
under the residual clause of the ACCA.” Id. As a result, the court ruled that 28
U.S.C. § 2255(f)(3) did not apply to Mr. Ellis’s case and, consequently, his
§ 2255 motion was untimely. Id.
In sum, it is far from “apparent to all reasonable jurists” that Johnson
invalidates pre-Booker sentencings made under the residual clause of the
Guidelines. Chaidez, 568 U.S. at 347 (citation and internal quotation marks
dismissed). In fact, as mentioned before, the Supreme Court itself has confirmed
that it has not yet answered “whether defendants sentenced to terms of
imprisonment” before the decision in Booker “may mount vagueness attacks on
their sentences.” Beckles, 137 S. Ct. at 903 n.4 (Sotomayor, J., concurring).
Consequently, Johnson does not announce the right Mr. Rith asserts and his
motion is not timely.
For the reasons just mentioned, the court GRANTS the Government’s
motion to dismiss (ECF No. 18).
DATED this 29th day of August, 2017.
BY THE COURT:
U.S. District Court Judge
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