United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. Bataillon Senior United States District Judge
matter is before the court on the defendant's
"motion to appoint attorney for eligibility under
Supreme Court decision in Johnson v. United States,
" Filing No. 123, construed as a motion to vacate under
28 U.S.C. § 2255, see Filing No. 126, and on
counsel's motion to withdraw, Filing No. 127. The
defendant seeks relief under Johnson v. United
States, 135 S.Ct. 2551 (2015). In Johnson, the
Supreme Court invalidated the residual clause of the Armed
Career Criminal Act of 1984 ("ACCA"), 18 U.S.C.
§ 924(e)(2)(B)(ii), which defined "violent
felony" as a crime that "involves conduct that
presents a serious potential risk of physical injury to
another" as unconstitutionally vague in violation of due
process of law. Id. at 2557.
record shows that the defendant, pursuant to a plea
agreement, was sentenced to a ten-year mandatory minimum
sentence on a drug trafficking charge (Count I) and to a
consecutive sentence of 60 months for carrying a firearm in
connection with a drug trafficking offense under 18 U.S.C.
§ 924 (Count V), resulting in a 180 month sentence.
Filing No. 74, Judgment. No prior conviction was
used to enhance the defendant's sentence and the
defendant received the statutory mandatory minimum sentence.
See Filing No. 72, Presentence Investigation Report at 13.
sentence was not based on the residual clause of the ACCA, or
the arguable equivalent "crime of violence" clause
of 18 U.S.C. § 924(c)(1)(A)(i). Instead, Medina-Ayon's
sentence was the result of his drug conviction with a
mandatory minimum sentence of 120 months incarceration based
on quantity, and a conviction for possessing a firearm in
relation to a drug trafficking offense. No definitions for
"crimes of violence" were implicated and no prior
conviction was used to enhance the defendant's sentence.
Therefore, the Johnson decision is inapplicable,
here, and Medina-Ayon's claim fails. The court finds it
appears plainly from the face of the motion and the record
that Medina-Ayon is not entitled to relief, and his motion is
subject to dismissal under Rule 4(b) of the Rules Governing
Section 2255 Proceedings.
has shown that there are no non-frivolous claims for relief
pursuant the Johnson decision and the court finds
counsel should be allowed to withdraw. Further, there appears
to be no need for a hearing and the hearing previously
scheduled herein will be cancelled.
must make a substantial showing of the denial of a
constitutional right in order to be granted a certificate of
appealability in this case. See Miller-El v.
Cockrell, 537 U.S. 322 (2003). "A substantial
showing is a showing that issues are debatable among
reasonable jurists, a court could resolve the issues
differently, or the issues deserve further proceedings."
Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997).
Moreover, "‘[w]here a district court has rejected
the constitutional claims on the merits, the showing required
to satisfy § 2253(c) is straightforward: The petitioner
must demonstrate that reasonable jurists would find the
district court's assessment of the constitutional claims
debatable or wrong.'" Miller-El, 537 U.S.
at 338 (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)). The court finds Medina-Ayon's motion does not
present questions of substance for appellate review and,
therefore, does not make the requisite showing to satisfy
§ 2253(c). See 28 U.S.C. Â§ 2253(c)(2); Fed. R. App. P.
22(b). Accordingly, no certificate of appealability
pursuant to 28 U.S.C. § 2253(c) will issue. Should
Medina-Ayon wish to seek further review of his petition, he
may request a certificate of appealability from a judge of
the United States Court of Appeals for the Eighth Circuit.
See Tiedman v. Benson, 122 F.3d 518, 520-22 (8th
IT IS HEREBY ORDERED that:
defendant's motion to vacate (Filing No. 123) is
Counsel's motion to withdraw (Filing No. 127) is
hearing scheduled for October 3, 2016 at 11:00 a.m. in
Courtroom No. 3, Roman L. Hruska U.S. Courthouse, 111 South
18th Plaza, Omaha, NE is cancelled.
action is dismissed.
judgment in conformity with the Memorandum and Order will
issue this date.
certificate of appealability pursuant to 28 U.S.C. ...