Rivas v. United States of America

Filing 6

ORDER signed by Judge Pamela Pepper on 4/28/2017 DENYING 1 Petitioner's motion to vacate, set aside or correct sentence; DECLINING to issue a certificate of appealability; DENYING 5 Petitioner's motion to dismiss without prejudice; and DISMISSING case. (cc: all counsel) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

PEDRO LUIS RIVAS,
Petitioner,
v.

Case No. 16-cv-433-pp

UNITED STATES OF AMERICA,
Respondent.
ORDER DENYING PETITIONER’S MOTION TO VACATE, SET ASIDE, OR
CORRECT SENTENCE (DKT. NO. 1), DECLINING TO ISSUE CERTIFICATE
OF APPEALABILITY, DENYING PETITIONER’S MOTION TO DISMISS AS
MOOT (WITHOUT PREJUDICE)(DKT. NO. 5), AND DISMISSING CASE
After the Seventh Circuit Court of Appeals granted the petitioner leave to
file a second or successive petition based on Johnson v. United States, 135 S.
Ct. 2551 (2015), he filed the pending motion to vacate, set aside or correct
sentence. Dkt. No. 1. The petitioner argued that, under Johnson, the residual
clause in U.S.S.G. §4B1.2 was void for vagueness. Because the sentencing
judge enhanced his sentence under that residual clause, the petitioner argued
that this court should correct his sentence. Id. at 9.
On March 6, 2017, the United States Supreme Court issued a decision in
Beckles v. United States, 137 S. Ct. 886 (2017), holding that the advisory
sentencing guidelines are not subject to vagueness challenges under the Due
Process clause. Beckles forecloses the petitioner’s argument that he is entitled

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to relief. Three days after the Beckles decision, the government filed a letter
urging the court to deny the motion.1 Dkt. No. 4. A couple of weeks later, the
petitioner filed a motion to dismiss without prejudice. Dkt. No. 5.
Under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), the
potential effect of voluntary dismissal of the petition would be no different from
the potential effect of a ruling on the merits. Under AEDPA, a prisoner has one
“single unencumbered opportunity to pursue collateral review.” Vitrano v.
United States, 643 F.3d 229, 233 (7th Cir. 2011); 28 U.S.C. § 2255(h). Before
filing a second or successive motion, the prisoner must obtain certification to
do so from the court of appeals. Id. There is no requirement that the court
must adjudicate the first petition on the merits in order for it to count as the
prisoner’s first motion. Felder v. McVicar, 113 F.3d 696, 697 (7th Cir. 1997). A
voluntary dismissal may operate as a decision on the merits if the prisoner
withdraws the motion because it has become clear to him that the court will
deny the motion on the merits. Potts v. United States, 210 F.3d 770 (7th Cir.
2000).
Because Beckles acts as “handwriting on the wall,” the court will deny
the motion on the merits, and deny the motion to dismiss as moot. See Potts,
210 F.3d at 771 (motion was second or successive when the petitioner had an
opportunity to receive a decision on the merits but flinched after receiving the
opposition brief and “seeing the handwriting on the wall.”) The court declines to
In the future, the court asks that if the government wants the court to take
some action (or refrain from taking some action), it file a pleading—a motion,
an objection, a response—rather than correspondence.
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issue a certificate of appealability, because after Beckles, the petitioner cannot
demonstrate that reasonable jurists could debate that the motion be resolved
in a different manner or that the issue presented is adequate to deserve further
encouragement. 28 U.S.C. § 2253(c)(2); Tennard v. Dretke, 542 U.S. 274, 282
(2004).
The court DENIES petitioner’s motion to vacate, set aside or correct
sentence. Dkt. No. 1. The court DECLINES TO ISSUE a certificate of
appealability. The court DENIES petitioner’s motion to dismiss as moot,
without prejudice. Dkt. No. 5. The court DISMISSES the case.
Dated in Milwaukee, Wisconsin, this 28th day of April, 2017.

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