Ellis v. USA

Filing 20

MEMORANDUM DECISION AND ORDER granting the United States' 13 Motion to Dismiss; denying the United States' 12 Motion to Strike. Signed by Judge Dale A. Kimball on 5/30/2017. (eat)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

MICHAEL WAYNE ELLIS,
Petitioner,
vs.

MEMORANDUM DECISION AND
ORDER
Case No. 2:16-CV-484-DAK

UNITED STATES OF AMERICA,

The Honorable Dale A. Kimball

Respondent.
This matter is before the court on the United States of America’s Motion to Dismiss
Petitioner Michael Wayne Ellis’s Motion to Vacate, Set Aside, or Correct Sentence under 28
U.S.C. § 2255. On January 23, 2003, Mr. Ellis pleaded guilty to one count of possession of cocaine
with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Based on his guilty plea, the court
entered judgment as to Mr. Ellis on May 12, 2003, and sentenced Mr. Ellis to 262 months of
imprisonment followed by a term of supervised release of 60 months. Mr. Ellis appealed his
judgment, but the United States Court of Appeals for the Tenth Circuit affirmed the judgment on
June 14, 2004. After the United States Supreme Court issued its decision in United States v.
Booker, 543 U.S. 220 (2005), Mr. Ellis filed a pro se motion under 28 U.S.C. § 2255, which the
court denied on January 24, 2006. On June 12, 2006, the court also denied Mr. Ellis’s pro se
motion under Federal Rule of Civil Procedure 60(b).
On May 9, 2016, the Tenth Circuit authorized Mr. Ellis to file a second or successive 28
U.S.C. § 2255 motion to assert a claim for relief based on Johnson v. United States, 135 S. Ct. 2551
(2015). Based on that authorization, Mr. Ellis filed a Motion to Vacate, Set Aside, or Correct
Sentence under 28 U.S.C. § 2255 on June 6, 2016. Although the case was stayed for a time

pursuant to a General Order of the court, the stay was lifted on January 31, 2017. On March 16,
2017, Mr. Ellis filed a Notice of Supplemental Authority to inform the court of the Supreme
Court’s decision in Beckles v. United States, 137 S. Ct. 886 (2017). On March 20, 2017, the United
States filed a Motion to Strike Notice of Supplemental Authority, and on March 21, 2017, the
United States filed a Motion to Dismiss Mr. Ellis’s Motion to Vacate, Set Aside, or Correct
Sentence under 28 U.S.C. § 2255.
In its motion, the United States argues that the court should dismiss Mr. Ellis’s 28 U.S.C. §
2255 motion because, among other things, Johnson does not apply to Mr. Ellis’s case and Mr.
Ellis’s petition is untimely. Because the timeliness of Mr. Ellis’s petition affects the court’s
jurisdiction to entertain the merits of the petition, the court will address timeliness first. Because
the court concludes that Mr. Ellis’s petition is not timely, the court will not address the other
arguments in the motion to dismiss.
“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 in custody can move the
court to vacate, set aside, or correct a sentence if the sentence was unconstitutional, illegal, in
excess of the maximum authorized by law, or otherwise subject to collateral attack. A one-year
statute of limitation applies to motions brought under § 2255.
The limitation period shall run from the latest of (1) the date on which the judgment of
conviction becomes final; (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 governmental
action; (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 due diligence.

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28 U.S.C. § 2255(f).
The Judgment in Mr. Ellis’s underlying criminal case was entered on May 12, 2003. Mr.
Ellis filed an appeal, which was decided on June 14, 2004, and the Judgment became final, and the
one-year statute of limitations began to run, on that date. Absent an event restarting the one-year
period, Mr. Ellis would be time barred from filing a petition after June 14, 2005, which would
include his § 2255 petition, which he filed on June 6, 2016.However, Mr. Ellis argues that the
Supreme Court decision in Johnson, decided June 26, 2015, asserted a new right that is
retroactively applicable to Mr. Ellis’s case and that, therefore, restarted the one-year period per 28
U.S.C. § 2255(f)(3).
Mr. Ellis is correct that Johnson asserted a new right that was made retroactively applicable
to cases on collateral review in Welch v. United States, 136 S. Ct. 1257 (2016). However, the right
recognized by the Supreme Court in Johnson does not apply to Mr. Ellis’s case. In Johnson, the
Supreme Court held that “imposing an increased sentence under the residual clause of the Armed
Career Criminal Act [“ACCA”] violates the Constitution’s guarantee of due process” because the
residual clause of the ACCA is unconstitutionally vague. Johnson v. United States, 135 S. Ct.
2551, 2563 (2015). Mr. Ellis’s sentence was increased under the residual clause of the United
States Sentencing Commission Guidelines (“USSG”) § 4B1.2, not under the residual clause of the
ACCA. Therefore, the right recognized in Johnson does not apply to Mr. Ellis’s case.
But Mr. Ellis argues that, because the language in the residual clause of USSG § 4B1.2 is
“virtually identical” to the language in the residual clause of the ACCA, that the right recognized
in Johnson should apply to his case. See United States v. Madrid, 805 F.3d 1204, 1210 (10th Cir.
2015). As support for his position, Mr. Ellis cites United States v. Madrid, where the Tenth Circuit

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relied on the reasoning in Johnson to “hold that the residual clause of § 4B1.2(a)(2) is void for
vagueness.” Id. at 1211.
The court disagrees with Mr. Ellis’s argument for two major reasons. First, a right
recognized by the Tenth Circuit is not sufficient under the terms of the relevant statute to grant the
court the jurisdiction to modify Mr. Ellis’s sentence. See 28 U.S.C. § 2255(f)(3) (requiring a right
to be “newly recognized by the Supreme Court and made retroactively applicable to cases on
collateral review” (emphasis added)). Second, assuming a right recognized by the Tenth Circuit
was sufficient to grant the court jurisdiction to modify Mr. Ellis’s sentence, Madrid is not directly
applicable to Mr. Ellis’s case. The defendant in Madrid was sentenced under USSG 4B1.2 after the
Supreme Court decided in United States v. Booker, 543 U.S. 220 (2005), that the sentencing
guidelines are advisory and not mandatory. In Beckles v. United States, the Supreme Court
addressed whether the holding in Johnson applies to the advisory sentencing guidelines and held
“that the advisory Sentencing Guidelines are not subject to a vagueness challenge under the Due
Process Clause and that § 4B1.2(a)’s residual clause is not void for vagueness.” 137 S. Ct. 886, 895
(2017); see also United States v. Pena, No. 16-6340, 2017 WL 1826848, at *1 (10th Cir. May 4,
2017) (recognizing that “the U.S. Supreme Court overruled [Madrid] in Beckles v. United States”).
Therefore, neither the Supreme Court in Beckles nor the Tenth Circuit in Madrid directly
addressed “the question whether defendants sentenced to terms of imprisonment before [the
Supreme Court’s] decision in United States v. Booker, 543 U.S. 220 (2005) . . . may mount
vagueness attacks on their sentences.” Beckles, 137 S. Ct. at 903 n.4 (Sotomayor, J., concurring).
Because Mr. Ellis was sentenced under the mandatory sentencing guidelines before the Supreme
Court’s decision in Booker, the court concludes that neither the Tenth Circuit’s decision in Madrid
nor the Supreme Court’s decision in Beckles directly applies to Mr. Ellis’s case.

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Because the court concludes that Johnson does not apply to Mr. Ellis’s case and that
neither the Supreme Court nor the Tenth Circuit has directly recognized a right to modify a
sentence increased under the residual clause of USSG § 4B1.2 before Booker, the court concludes
that the United States’ Motion to Dismiss should be granted because Mr. Ellis’s petition is
untimely.
The United States also moves to strike Mr. Ellis’s Notice of Supplemental Authority
because Mr. Ellis failed to comply with DUCivR 7-1(b)(4) by not including a reference to the
relevant page within the supplemental authority and by improperly including argument within the
notice. Although the court agrees that Mr. Ellis failed to comply with the local rule in his Notice of
Supplemental Authority, the court denies the motion to strike that authority. The court is aware of
the portions of the supplemental authority that apply to this case, and the court will only entertain
arguments from the parties as they are properly brought before the court.
Pursuant to Rule 11 of the Rules Governing Section 2255 Proceedings for the United States
District Courts, “[t]he district court must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.” Under 28 U.S.C. § 2253, a certificate of appealability "may
issue . . . only if the applicant has made a substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2); United States v. Silva, 430 F.3d 1096, 1100 (10th Cir.2005)
(quoting 28 U.S.C. § 2253(c)(2)). The court finds that “reasonable jurists could not debate whether
the petition should have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003). The court concludes that Mr. Ellis has not made a substantial showing of the denial of a
constitutional right and, therefore, declines to issue a Certificate of Appealability. If Mr. Ellis

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wishes to appeal the court’s ruling on his motion, he must seek a certificate from the court of
appeals under Federal Rule of Appellate Procedure 22.
For the reasons above, the United States’ Motion to Dismiss is GRANTED, and the United
States’ Motion to Strike is DENIED.

DATED this 30th day of May, 2017.

BY THE COURT:

DALE A. KIMBALL
United States District Judge

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