Garcia v. United States

• Decision Date: 29 January 2021
• Docket Number: No. CV 16-00355 JCH/KBM,No. CR 09-01766 JCH,CV 16-00355 JCH/KBM,CR 09-01766 JCH
• Parties: ADAM JASON GARCIA, Movant, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — District of New Mexico

ADAM JASON GARCIA, Movant, v. UNITED STATES OF AMERICA, Respondent.

No. CV 16-00355 JCH/KBM

No. CR 09-01766 JCH

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

January 29, 2021

MEMORANDUM OPINION AND ORDER

THIS MATTER is before the Court under Rule 4 of the Rules Governing Section 2255 Proceedings on the Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence filed by Movant, Adam Jason Garcia (CV Doc. 19; CR Doc. 98) ("Motion"). Movant Garcia seeks to have his conviction and sentence set aside based on the United States Supreme Court's rulings in Johnson v. United States and Davis v. United States. The Court determines that Movant Garcia is not eligible for § 2255 relief under either Johnson or Davis and will dismiss the Motion. The Court will also grant Movant Garcia a Certificate of Appealability.

FACTUAL AND PROCEDURAL BACKGROUND

Movant Adam Jason Garcia was indicted on June 25, 2009. (CR Doc. 2). Garcia pled guilty to Carrying a Firearm During and in Relation to a Crime of Violence under 18 U.S.C. § 924(c)(1)(A) and Felon in Possession of a Firearm and Ammunition under 18 U.S.C. § 922(g)(1) with an Armed Career Criminal Act ("ACCA") enhancement under 18 U.S.C. § 924(e). (CR Doc. 42 at 1-2). In his Admissions of Fact, Garcia admitted to seven underlying New Mexico criminal convictions, including auto burglary, unlawful taking of a motor vehicle, four cases of robbery, and forgery. (CR Doc. 42 at 4-5). Garcia also admitted that he had knowingly possessed a Walther P-22 semi-automatic pistol and ammunition in relation to the federal crimes. (CR Doc. 42 at 5). On April 13, 2011, Garcia was sentenced to 264 months of incarceration. (CR Doc. 48).

Garcia filed his first § 2255 motion to vacate or set aside his conviction on March 27, 2012. (CR Doc. 50). That § 2255 motion was dismissed on the merits by the Court. (CR Doc. 69, 70, 71). Movant Garcia then filed his second § 2255 motion on April 27, 2016. (CV Doc. 1; CR Doc. 81). In his second § 2255 motion, Garcia challenged the ACCA enhancement under 28 U.S.C. § 924(e) based on the United States Supreme Court's decision in Johnson v. United States, 576 U.S. 591, 135 S. Ct. 2551 (2015). (CV Doc. 1; CR Doc. 81). Garcia also filed a motion to stay pending Tenth Circuit authorization to file an amended § 2255 motion (CR Doc. 85) and a request for authorization for an amended § 2255 motion (CR Doc. 87). CR Doc. 81, 85, and 87 remain pending on the criminal docket in CR 09-01766 JCH.

As required by 28 U.S.C. § 2255(h), Garcia sought leave to proceed on a successive § 2255 motion from the United States Court of Appeals for the Tenth Circuit. (CR Doc 87). That request was abated by the Tenth Circuit on June 24, 2016. (CR Doc. 88). On December 23, 2019, the abatement was lifted by the Tenth Circuit and Movant Garcia was authorized to proceed on a successive 2255 motion. (CV Doc. 17; CR Doc. 95). The Court then entered its Order directing Garcia to file the authorized successive § 2255 motion setting out any claims Garcia may have under either Johnson v. United States or Davis v. United States, 588 U.S. ___, 139 S. Ct. 2319 (2019) no later than June 24, 2020. (CV Doc. 16; CR Doc. 96).

Movant Garcia filed his Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence on June 24, 2020. (CV Doc. 19; CR Doc. 98) ("Amended Motion"). In his Amended Motion, Garcia raises two issues: (1) New Mexico Robbery cannot be a predicateviolent felony for the Armed Career Criminal Act under Johnson; and (2) Hobbs Act Robbery is not a predicate crime of violence under Davis and § 924(c). (CV Doc. 19 at 1; CR Doc. 98 at 1).

APPLICABLE LAW ON JOHNSON V. UNITED STATES,

DAVIS V. UNITED STATES,

AND SECTION 2255 COLLATERAL REVIEW

Garcia seeks collateral review of his sentence under 28 U.S.C. § 2255. Section 2255 provides:

"A prisoner in custody under a sentence of a court established by Act of Congress claiming the right to be released upon the ground That the sentence was imposed in violation of the Constitution or Laws of the United States, or that the court was without jurisdiction To impose such sentence, or that the sentence was in excess of the Maximum authorized by law, or is otherwise subject to collateral Attack, may move the court which imposed the sentence to vacate, Set aside or correct the sentence."

28 U.S.C. § 2255(a). Claims for collateral review of convictions and sentences are governed by a 1-year statute of limitations. Section 2255(f) sets out the 1-year statute of limitations:

"A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of—

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

An untimely direct appeal or a motion to reduce sentence will not alter or toll the running of the one-year limitation period of § 2255(f). See United States v. Terrones-Lopez, 447 Fed.App'x 882, 884-85 (10th Cir. 2011).

Because Garcia seeks collateral review more than a year after his sentence became final, he relies on the right newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review in Johnson and Welch v. United States, 578 U.S. ___, 136 S.Ct. 1257 (2016). See 28 U.S.C. § 2255(f)(3). In Johnson, the Supreme Court held that the residual clause of the Armed Career Criminal Act ("ACCA") is impermissibly vague and imposing an increased sentence under the residual clause of 18 U.S.C. § 924(e)(2)(B) violates the Constitution's guarantee of due process. 135 S.Ct. at 2562-2563. The predicate crime for an enhanced sentence under § 924(e) is transportation or possession of a firearm by a person who has been convicted of a crime punishable by imprisonment for a term exceeding one year. 18 U.S.C. § 922(g). Under the ACCA, a defendant convicted of being a felon in possession of a firearm faces more severe punishment if he has three or more previous convictions for a "violent felony." 18 U.S.C. § 924 (e)(2)(B). The Act defines "violent felony" to mean:

"any crime punishable by imprisonment for a term exceeding one year . . . 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 the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another."

18 U.S.C. § 924(e)(2)(B) (emphasis added).

The Johnson Court struck down the italicized residual clause language of § 924(e)(2)(B)(ii) as unconstitutionally vague. 135 S.Ct. at 2555-2563. The language of § 924(e)(2)(B)(i), whichdefines "violent felony" to mean a crime that "has as an element the use, attempted use, or threatened use of physical force," is commonly referred to as the "element" or "force" clause. The "enumerated" clause is the language of § 924(e)(2)(B)(ii) that lists the crimes of burglary, arson, extortion, or the use of explosives as violent felonies. The Supreme Court expressly stated that its holding with respect to the residual clause does not call into question application of the Act to the four enumerated offenses or the remainder of the definition of a violent felony in § 924(e)(2)(B). 135 S.Ct. at 2563. Therefore, the Johnson decision has no application to sentences enhanced under the force or element clause of § 924(e)(2)(B)(i) or the enumerated clause of § 924(e)(2)(B)(ii).

In addition to Johnson, Garcia also relies on the United States Supreme Court's decision in United States v. Davis, ___ U.S. ___, 139 S.Ct. 2319 (2019). On June 24, 2019, the U.S. Supreme Court struck down the residual clause of 18 U.S.C. 924(c)(3)(B) as constitutionally vague and invalid in United States v. Davis. Section 924(c) defines "crime of violence" to mean:

"an offense that is a felony and—

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

(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."

18 U.S.C. § 924(c)(3). In Davis, the Supreme Court ruled that the residual clause language of 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague. 139 S. Ct. at 2336. The Court determined that this conclusion was compelled by its prior decisions in United States v. Johnson and Sessions v. Dimaya, 584 U.S. ___, 138 S. Ct. 1204 (2018). On September 3, 2019 the Tenth Circuit handed down a precedential opinion holding that Davis is retroactively applicable on collateral review. United States v. Bowen, 936 F.3d 1091 (10^th Cir. 2019). The Tenth Circuit also held that the U.S. Supreme Court has made Davis retroactively applicable for purposes of second or successive § 2255 motions. In re Mullins, 942 F.3d 975 (10^th Cir. 2019).

ANALYSIS OF MOVANT GARCIA'S CLAIMS

1. Garcia is Not Eligible For Relief Under Johnson v. United States because New Mexico Robbery is a Predicate Violent Felony:

Garcia claims that New Mexico Robbery cannot be a predicate violent felony for the Armed Career Criminal Act ("ACCA") under Johnson. (CV Doc. 19 at 13-17; CR Doc. 98 at 13-17). Garcia's argument, however, has been rejected by the Tenth Circuit. See, e.g., United States v. Manzanares, 956 F.3d 1220, 1223 (10^th Cir. 2020); United States v. Velasquez, 810 Fed. App'x. 655 (10^th Cir. 2020). The ACCA...