Ama v. United States, Civil Case No. 2:15-CV-737 TS

• Decision Date: 24 February 2016
• Docket Number: Civil Case No. 2:15-CV-737 TS,Criminal Case No. 2:11-CR-56 TS
• Citation: 149 F.Supp.3d 1323
• Parties: Paul Ama, Petitioner, v. United States of America, Respondent.
• Court: U.S. District Court — District of Utah

149 F.Supp.3d 1323

Paul Ama, Petitioner,

v.United States of America, Respondent.

Civil Case No. 2:15-CV-737 TS

Criminal Case No. 2:11-CR-56 TS

United States District Court, D. Utah.

Signed February 24, 2016

Paul Tauese Ama, Beaumont, TX, pro se.

Bradley A. Jeppsen, Tyler L. Murray, US Attorney's Office, Salt Lake City, UT, for Respondent.

MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN PART PETITIONER'S MOTION TO ALTER OR AMEND JUDGMENT PURSUANT TO RULE 59(e)

Ted Stewart, United States District Judge

This matter is before the Court on Petitioner's Motion to Alter or Amend Judgment Pursuant to Rule 59(e). For the reasons discussed below, the Court will grant the Motion in part and deny it in part.

I. BACKGROUND

On January 29, 2011, Petitioner was charged with possession of methamphetamine with intent to distribute, possession of marijuana with intent to distribute, and felon in possession of a firearm. On March 18, 2011, the government filed an Information and Notice of Enhanced Punishment pursuant to 18 U.S.C. § 924(e)(1)

and 21 U.S.C. § 841(b). The government asserted that Petitioner was subject to enhanced penalties under the Armed Career Criminal Act (“ACCA”). On December 8, 2011, Petitioner pleaded guilty to felon in possession of a firearm. On March 6, 2012, Petitioner was sentenced, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), to a term of 180 months in the custody of the Bureau of Prisons. Judgment was entered the following day and Petitioner did not file a direct appeal.

On October 13, 2015, Petitioner filed a pro se motion under 28 U.S.C. § 2255

, arguing that his sentence was unlawful in light of Johnson v. United States.¹ In Johnson, the United States Supreme Court invalidated the residual clause of the ACCA, finding that it was unconstitutionally vague. This Court denied Petitioner's motion, finding that it was untimely and barred by the collateral appeal waiver in his plea agreement. Petitioner, through counsel, now moves for reconsideration.

II. DISCUSSION

The Tenth Circuit Court of Appeals has provided the “steps to be followed by district courts in this circuit when they are presented with a Rule 60(b) motion in a habeas or § 2255

case.”² Rule 59(e) motions are subject to the same analysis.³ The Court must first determine whether the motion is a true Rule 59(e) motion or a second or successive petition.⁴

If the district court concludes that the motion is a true Rule [59(e) ] motion, it should rule on it as it would any other Rule [59(e) ] motion. If, however, the district court concludes that the motion is actually a second or successive petition, it should refer the matter to [the Tenth Circuit] for authorization ....⁵

A Rule 59(e) “motion is a second or successive petition if it in substance or effect asserts or reasserts a federal basis for relief from the petitioner's underlying conviction.”⁶

Conversely, it is a “true” [59(e) ] motion if it either (1) challenged only a procedural ruling of the habeas court which precluded a merits determination of the habeas application, or (2) challenges a defect in the integrity of the federal habeas proceeding, provided that such a challenge does not itself lead inextricably to a merits-based attack on the disposition of a prior habeas petition.⁷

Under this analysis, the Court finds that Petitioner's Motion is a true Rule 59(e) motion, not a second or successive petition. As stated, the Court rejected Petitioner's § 2255

motion on procedural grounds and Petitioner's Motion to Alter or Amend Judgment challenges that procedural ruling. Motions that challenge a “court's ruling on procedural issues should be treated as a true [59(e) ] motion rather than a successive petition.”⁸ The Court will therefore turn to Petitioner's arguments.

A. TIMELINESS

Petitioner argues that the Court was incorrect in determining that Johnson

does not apply retroactively. The government does not contest this point. The Court recognizes that the issue of Johnson 's retroactive application has created a circuit split and is currently before the Supreme Court.⁹ Because the Court need not definitively rule on the issue of retroactivity to resolve Petitioner's claims, the Court will vacate that portion of the Court's previous ruling. By doing so, the Court expresses no opinion on Johnson 's retroactivity.

B. COLLATERAL APPEAL WAIVER AND MERITS

The Court previously ruled that Petitioner's claims were barred by the collateral appeal waiver contained in his plea agreement. As stated, the Tenth Circuit has established a three-part test based upon contract principles to interpret appeal waivers.¹⁰ The Court is to consider “ ‘(1) whether the disputed appeal falls within the scope of the waiver of appellate rights; (2) whether the defendant knowingly and voluntarily waived his appellate rights; and (3) whether enforcing the waiver would result in a miscarriage of justice.’ ”¹¹ Petitioner argues that his claims are not within the scope of the collateral appeal waiver and that enforcing the waiver would result in a miscarriage of justice.¹² In particular, Petitioner argues that his sentence was unlawful in light of Johnson

. This argument necessarily turns on the merits of Petitioner's claims.

The ACCA, 18 U.S.C. § 924(e)

, provides for increased penalties for a person who violates 18 U.S.C. § 922(g) and has three previous convictions for a violent felony or a serious drug offense. The Act defines “violent felony” as:

any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that—

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another ....¹³

In Johnson

, the Supreme Court held that the last portion of the ACCA—crimes that otherwise involve conduct that presents a serious potential risk of physical injury to another—was unconstitutionally vague.¹⁴ However, the Court stated that “[t]oday's decision does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act's definition of a violent felony.”¹⁵

The government argues that even after Johnson

, Petitioner qualifies for an enhancement under the ACCA based on three prior convictions: assault by a prisoner, attempted robbery, and assault on a federal employee or officer. These are not enumerated offenses under the ACCA. Therefore, the Court must consider whether these offenses have “as an element the use, attempted use, or threatened use of physical force against the person of another.”¹⁶

“To determine whether a conviction qualifies under the ACCA, the court will ordinarily apply what is called the ‘categorical approach,’ which looks only at the elements of the statute under which the defendant was convicted.”¹⁷ “At times, however, a court may use what is termed the ‘modified categorical approach’ to determine whether a prior conviction is for a qualified offense under the ACCA.”¹⁸

This approach is warranted when a statute is divisible: that is, when it sets out one or more elements of the offense in the alternative—for example, stating that burglary involves entry into a building or an automobile. Because an offense may not qualify under the ACCA under all the alternatives (say, entry into a building but not entry into a car), the court examines certain definitive underlying documents to determine which alternative the defendant's conviction satisfied. We have not created an exhaustive list of which documents can be examined under the modified categorical approach, but the Supreme Court has stated that permissible documents include charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and jury instructions and verdict forms.¹⁹

With this standard in mind, the Court considers whether Petitioner's prior convictions constitute violent felonies.

1. Assault by a Prisoner

Petitioner was convicted of assault by prisoner in violation of Utah Code Ann. § 76–5–102.5

.²⁰ The Tenth Circuit has held that a violation of this statute is a violent felony under the ACCA.²¹ The court stated that “[o]ne element of the statute under which he was convicted is ‘commission of assault,’ which by definition requires the use of force.”²²

Petitioner does not acknowledge Tahguv

. Rather, Petitioner argues that this offense is not categorically a violent felony, relying on an unpublished decision from the Fifth Circuit addressing Utah's generic assault statute.²³ While neither decision is a published opinion, the Court finds Tahguv to be persuasive as it arises from an appeal from this Court and addresses the very statute at issue here. Based upon that case, the Court finds that Petitioner's conviction for assault by a prisoner constitutes a violent felony for purposes of the ACCA.

2. Attempted Robbery

Petitioner has a 2000 conviction for attempted robbery. At the time of his conviction, Utah's robbery statute provided:

(1) A person commits robbery if:

(a) person unlawfully and intentionally takes or attempts to take personal property in the possession of another from his person, or immediate presence, against his will, accomplished by means of force or fear; or

(b) the person intentionally or knowingly uses force or fear of immediate force against another in the course of committing a theft.

(2) An act shall be considered “in the course of committing a theft” if it occurs in an attempt to commit theft, commission of theft, or in the immediate flight after the attempt or commission.

(3) Robbery is a felony of the second degree.²⁴

Petitioner argues that this offense is not categorically a violent felony. The Court disagrees.

In United...