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United States v. Avitia-Marquez

United States District Court, D. Nebraska

October 25, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
FRANCISCO AVITIA-MARQUEZ, Defendant.

          MEMORANDUM AND ORDER

          John M. Gerrard United States District Judge

         This 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.

         A § 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.

         I. BACKGROUND

         The 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.

         The 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).

         The 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 sentence.

         II. DISCUSSION

         Before 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.

         The 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)

         The 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 43-is pending.

         1. Johnson Claim

         The 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 ...


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