149 F. Supp. 3d 1323
D. Utah2016Background
- Petitioner pleaded guilty (Dec. 8, 2011) to being a felon in possession of a firearm and was sentenced under an 11(c)(1)(C) plea to 180 months; no direct appeal was filed.
- The government had charged an ACCA enhancement in the Information based on three prior convictions (assault by prisoner; attempted robbery; assault on a federal officer).
- Petitioner filed a pro se § 2255 in 2015 relying on Johnson v. United States (invalidating the ACCA residual clause); the district court originally denied relief as untimely and barred by a collateral-appeal waiver.
- Petitioner moved under Rule 59(e) to alter or amend the judgment; the court analyzed whether the motion was a true Rule 59(e) motion or a successive habeas petition and treated it as a true Rule 59(e) motion because it challenged procedural rulings.
- The court vacated its prior ruling on Johnson’s retroactivity (expressing no opinion on retroactivity), but upheld enforcement of the collateral-appeal waiver after concluding Petitioner’s three prior convictions qualify as ACCA violent felonies, and thus dismissed the § 2255.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Rule 59(e) motion is a true Rule 59(e) motion or a successive petition | Ama: Motion challenges the district court’s procedural rulings and is a true Rule 59(e) motion | Govt: (implicit) could be treated as successive if it reasserts merits grounds | Court: True Rule 59(e) motion because it challenges procedural rulings that barred merits review |
| Johnson retroactivity / timeliness of § 2255 | Ama: Johnson applies retroactively; thus § 2255 timely / cognizable | Govt: Did not contest retroactivity here | Court: Vacated its prior non-retroactivity ruling and expressed no opinion on retroactivity; need not resolve retroactivity to decide waiver/merits |
| Enforceability/scope of collateral-appeal waiver | Ama: His Johnson-based claim is outside the waiver or enforcing it would be a miscarriage of justice | Govt: Waiver covers collateral attacks and was knowingly and voluntarily made | Court: Waiver enforced because Petitioner’s claim falls within waiver scope after finding his priors are violent felonies |
| Whether Petitioner’s three prior convictions qualify as ACCA violent felonies | Ama: Priors are not categorically violent felonies (or statute divisible such that they may not qualify) | Govt: Each prior (assault by prisoner; attempted robbery; § 111 assault on federal officer) qualifies under categorical or modified categorical approach | Court: All three convictions qualify as violent felonies under the ACCA (assault by prisoner; attempted robbery based on plea facts; § 111 assault based on plea facts), so enhancement proper |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidated ACCA residual clause as unconstitutionally vague)
- Spitznas v. Boone, 464 F.3d 1213 (10th Cir. 2006) (framework for treating Rule 60(b)/Rule 59(e) motions in habeas cases)
- United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (three-part test for enforcing appeal waivers)
- United States v. Castillo, 811 F.3d 342 (10th Cir. 2015) (applying categorical approach to robbery statutes and Sentencing Guideline crime-of-violence analysis)
- United States v. Trent, 767 F.3d 1046 (10th Cir. 2014) (use of modified categorical approach for divisible statutes under ACCA)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (limited use of the modified categorical approach to divisible statutes)
- Welch v. United States, 136 S. Ct. 790 (2016) (addressed retroactivity of Johnson)
- United States v. Mitchell, 743 F.3d 1054 (6th Cir. 2014) (robbery statute found to be a violent felony under ACCA/Guidelines)
- United States v. Porter, 405 F.3d 1136 (10th Cir. 2005) (contract principles applied to appeal waivers)