United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard United States District Judge
matter is before the Court upon initial review of the pro se
motion to vacate under 28 U.S.C. § 2255 (filing
40) filed by the defendant, Francisco Avitia-Marquez,
pursuant to Johnson v. United States, 135 S.Ct. 2551
(2015), and his subsequent motion to vacate (filing
43) alleging ineffective assistance of counsel. The
motions were timely filed less than 1 year after the
defendant's conviction became final. See §
2255(f). The Court's initial review is governed by Rule
4(b) of the Rules Governing Section 2255 Proceedings for the
United States District Courts, which provides:
The judge who receives the motion must promptly examine it.
If it plainly appears from the motion, any attached exhibits,
and the record of prior proceedings that the moving party is
not entitled to relief, the judge must dismiss the motion and
direct the clerk to notify the moving party. If the motion is
not dismissed, the judge must order the United States
attorney to file an answer, motion, or other response within
a fixed time, or to take other action the judge may order.
§ 2255 movant is entitled to an evidentiary hearing
unless the motion and the files and records of the case
conclusively show that the movant is entitled to no relief.
§ 2255(b); Sinisterra v. United States, 600
F.3d 900, 906 (8th Cir. 2010). Accordingly, a motion to
vacate under § 2255 may be summarily dismissed without a
hearing if (1) the movant's allegations, accepted as
true, would not entitle the movant to relief, or (2) the
allegations cannot be accepted as true because they are
contradicted by the record, inherently incredible, or
conclusions rather than statements of fact. Engelen v.
United States, 68 F.3d 238, 240 (8th Cir. 1995); see
also Sinisterra, 600 F.3d at 906.
defendant was charged by indictment with one count of
possessing with intent to distribute 50 grams or more of a
mixture or substance containing methamphetamine, and one
count of illegal reentry. Filing 1. The defendant
pled guilty to both charges. Filing 23. And at his
change of plea hearing, the defendant was advised of his
rights, including but not limited to his right to remain
silent, his right to plead not guilty, his right to a jury
trial, his right to counsel, and his confrontation rights.
Filing 29 at 6-8. He was advised of the nature of
the charges and the potential penalties. Filing 23 at
3-4, 9. He was also informed of the factual basis for
the plea, and agreed with it. Filing 23 at 14-16.
The defendant's petition to enter a guilty plea set forth
the defendant's rights, in English and Spanish, and he
indicated his understanding of them. Filing 23. The
defendant agreed to waive his trial rights and plead guilty.
Filing 29 at 8-9. The Court accepted the
defendant's plea, finding that it was knowing,
intelligent, and voluntary. Filing 24.
presentence report found that the defendant's base
offense level for the drug charge was 24, based on at least
50 but less than 200 grams of methamphetamine. Filing 33
at 9. The presentence report further assessed a 2-level
enhancement for possession of a firearm. Filing 33 at
9. This resulted in an adjusted offense level of 26, and
a total offense level (after a reduction for acceptance of
responsibility) of 23. Filing 33 at 9-10. That,
combined with a criminal history category of I, resulted in a
Guidelines imprisonment range of 46 to 47 months'
imprisonment. Filing 33 at 15. But the statutory
mandatory minimum for the drug charge was 5 years'
imprisonment. Filing 33 at 15; see 21
U.S.C. § 841(b)(1)(B)(viii).
defendant was sentenced to 60 months' imprisonment on the
drug charge-the mandatory minimum-and to 46 months'
imprisonment on the immigration charge. Filing 33 at
15; filing 38 at 2. The terms were to be served
concurrently, filing 38 at 2, meaning that the
defendant was effectively sentenced to the mandatory minimum
addressing the merits of the defendant's claims, it is
necessary to address a procedural matter. The defendant has
filed two different motions. The first is a document
captioned "Petition for Writ of Certiorari"
(filing 40), asking for a sentence reduction based
on Johnson, 135 S.Ct. 2551. The Clerk of the Court
docketed it as a Johnson-based § 2255 motion.
The second filing is more clearly a § 2255 motion, set
forth on a form that is essentially the same as the
Court's form AO 243. Filing 43.
problem is that a federal prisoner must receive certification
from the Court of Appeals to file a "second or
successive" § 2255 motion. § 2255(h);
see United States v. Sellner, 773 F.3d 927,
930 (8th Cir. 2014). But the Eighth Circuit has held that
when a pro se petitioner files a second § 2255
motion while his first § 2255 motion is still pending
before the district court, the second motion is not barred as
"second or successive" and should be construed as a
motion to amend. Sellner, 773 F.3d at 931-32.
Furthermore, in considering pro se litigants'
amended pleadings, the Court may consider the amended
pleading as supplemental to, rather than as superseding, the
original pleading. NECivR 15.1(b)
Court will do so here: the Court will construe the
defendant's subsequent § 2255 motion as a motion to
amend, and will consider the two motions together as a single
§ 2255 motion presenting five postconviction claims. The
Clerk of the Court will be directed to terminate the motion
event for filing 40 to reflect the Court's
determination that a single § 2555 motion- filing
defendant's Johnson claim is not clear. In
Johnson, the Supreme Court struck down the
"residual clause" of the definition of "crime
of violence" contained in 18 U.S.C. § 924(e)(2)(B)
as unconstitutionally vague. 135 S.Ct. at 2563. But the
defendant was not convicted of violating § 924(e)(2)(B).
Nor do his convictions or sentencing implicate any of the
other places in the United States Code or the ...