Jaramillo v. United States

• Decision Date: 11 May 2020
• Docket Number: CV-19-8017-PCT-SPL (JFM),CR-15-8236-PCT-SPL
• Parties: Kristopher Andrew Jaramillo, Movant/Defendant v. United States of America, Respondent/Plaintiff.
• Court: U.S. District Court — District of Arizona

Kristopher Andrew Jaramillo, Movant/Defendant v. United States of America, Respondent/Plaintiff.

CV-19-8017-PCT-SPL (JFM)

CR-15-8236-PCT-SPL

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

May 11, 2020

Report & Recommendation on Motion to Vacate, Set Aside or Correct Sentence

I. MATTER UNDER CONSIDERATION

Motion - Movant, following his conviction in the United States District Court for the District of Arizona, filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). Movant alleges:

(1) that his counsel was ineffective for failing to argue that the offense for which Movant was convicted - "unarmed" bank robbery - was not a crime of violence because it did not qualify under the elements clause of U.S.S.G. § 4B1.2(a), and the residual clause is void for vagueness;

(2) his prior, New Mexico state conviction for unarmed robbery similarly does not qualify as a crime of violence under the elements clause;

(3) his current "unarmed" bank robbery conviction did not involve conduct that was knowingly intimidating; and

(4) because only one of his convictions qualified as a crime of violence, he did not qualify for sentencing as a career offender under 28 U.S.C. § 994(h).

Order to Show Cause - The Court initially ordered Movant to show cause why his Motion should not be dismissed as untimely (Order 2/22/19, Doc. 3), but vacated the order and directed a response to the Motion to Vacate. (Order 3/18/19, Doc. 5.) In the meantime, Movant filed a Response (Doc. 6), acknowledging his motion was untimely, but requesting equitable tolling.

Response - On July 15, 2019 Respondent responded (Doc. 9) to the Motion to Vacate, arguing:

(a) Movant waived his right to collaterally attack his conviction and sentence as part of his plea agreement;

(b) Movant's motion is fatally untimely, and he failed to provide a sufficient showing of equitable tolling;

(c) Movant has procedurally defaulted on his claims;

(d) Movant was provided effective counsel; and

(e) Movant's claims are meritless because counsel's actions were reasonable, bank robbery is a crime of violence under the elements clause, the residual clause was not void and was not applied, the New Mexico prior is a crime of violence under the elements clause, and intimidation was shown.

Reply - On October 18, 2019, Movant filed his Reply (Doc. 13), arguing:

(a) his waiver cannot extend to his sentencing claim, nor to deny due process;

(b) his claims are based on a newly recognized right under 2255(f)(3);

(c) ineffective assistance of counsel excuses his procedural default;

(d) his counsel was ineffective; and

(e) any lack of merits does not justify a dismissal.

Movant's Motion is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 10, Rules Governing Section 2255 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.

II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND

A. PROCEEDINGS AT TRIAL

Movant was indicted on a single charge of bank robbery in violation of 18 U.S.C.§ 2113(a). (CR Doc. 9, Indictment.)¹ With advice of counsel, he eventually entered into a written Plea Agreement (CR Doc. 24) wherein he agreed to plead guilty to the charge in exchange for a term of imprisonment not to exceed the low end of the applicable guidelines range, as determined by the Court at the time of sentencing.² That plea agreement included a waiver of collateral attack rights on any sentence consistent with the agreement.

The defendant waives (1) any and all motions, defenses, probable cause determinations, and objections that the defendant could assert to the superseding indictment or information; and (2) any right to file an appeal, any collateral attack, and any other writ or motion that challenges the conviction, an order of restitution or forfeiture, the entry of judgment against the defendant, or any aspect of the defendant's sentence, including the manner in which the sentence is determined, including but not limited to any appeals under 18 U.S.C. § 3742 (sentencing appeals) and motions under 28 U.S.C. §§ 2241 and 2255 (habeas petitions), and any right to file a motion for modification of sentence, including under Title 18, U.S.C., § 3582(c). This waiver shall result in the dismissal of any appeal, collateral attack, or other motion the defendant might file challenging the conviction, order of restitution or forfeiture, or sentence in this case. This waiver shall not be construed to bar an otherwise-preserved claim of ineffective assistance of counsel or of "prosecutorial misconduct" (as that term is defined by Section II.B of Ariz. Ethics Op. 15-01 (2015).

(Id. at 4-5, ¶ 6.) The Plea Agreement included the following statement of the elements of the offense:

On or about October 26, 2015, in the District of Arizona:

1. The defendant, through force, violence or intimidation took money, belonging to or in the care, custody, control, management or possession of a financial institution, Wells Fargo Bank; and

2. The deposits of Wells Fargo Bank were then insured by the Federal Deposit Insurance Corporation (FDIC).

(Id. at 6, ¶ 9.) The Agreement provided the following statement of factual basis:

a. The defendant admits that the following facts are true and that if this matter were to proceed to trial the United States could prove the following facts beyond a reasonable doubt:

On or about October 26, 2015, the defendant, Kristopher Andrew Jaramillo, entered Wells Fargo Bank, locate in ChinleArizona, and took $1833 from the victim teller, N.W. by intimidation. The money was federally insured by the Federal Deposit Insurance Corporation. Specifically, Jaramillo entered the Wells Fargo Bank holding a green bag. Jaramillo stood in-line and approached N.W. s teller window. Jaramillo gave N.W. a demand note written on pink paper. The note demanded money and instructed N.W. to not hit any alarms, alerts or police. N.W. complied and put money from her drawer into the green bag that Jaramillo held open. Jaramillo exited the bank and got into a red SUV.

(Id. at 6, ¶ 10.)

Movant entered his plea on March 1, 2016, which was accepted. (CR Doc. 23, M.E. 3/1/16.) In the course of the plea proceeding, Movant protested that he did not believe his conduct amounted to intimidation, but did not oppose the factual background, including the assertion that "[t]he note says, I need for you to do this for me. Please put your cash in the bag, no police alerts, alarms, or police." (CRDoc. 47, R.T. 3/1/16 at 16-17.)

A Presentence Investigation Report (CR Doc. 40) calculated a Total Offense Level of 29 (id. at 6) and an initial Criminal History Category III, increased to Category VI on a career offender finding (id. at 9-10, ¶¶ 35-37), with a resulting range of 151 to 188 months (id. at 17, ¶ 75). The report recommended a sentence of 151 months. (Id. at 19, ¶ 89.) Movant sought a downward variance to offset a career offender enhancement (CR Doc. 27, Motion), and challenged the enhancements based on prior robbery and attempted robbery convictions from New Mexico on the basis they did not qualify as crimes of violence (CR Doc. 28, Objection). The trial court rejected the arguments and on June 28, 2016 sentenced Movant to 151 months in prison, after applying the career offender enhancement which increased Movant's total offense level from 19 to 29 and his minimum guidelines sentence from 63 months to 151 months. (CR Doc. 41, M.E. 6/28/16; CR Doc. 42, Judgment.)

B. PROCEEDINGS ON DIRECT APPEAL

Movant did not file a direct appeal.

/ /

III. APPLICATION OF LAW TO FACTS

A. TIMELINESS

Respondent argues Movant's claims are barred by the applicable statute of limitations in 28 U.S.C. § 2255(f). Respondent argues Movant's one year expired on July 13, 2017, and his January 2, 2019 motion is some 18 months too late.

1. Statute of Limitations Not Discretionary

In his Motion, citing Day v McDonough, 547 U.S. 198, 209-10 (2006), Movant appears to argue that this Court retains jurisdiction to address his motion on the merits despite the statute of limitations. (Doc. 1 at 21.) To the contrary, Day only recognized that where the respondent fails to argue a violation of an applicable statute of limitations, the habeas court has discretion to either proceed to address the habeas petition on the merits, or to raise the statute of limitations sua sponte. Day gives habeas courts the discretion to raise an ignored limitations defense, it does not give discretion to ignore a raised limitations defense. Here, Respondent has raised its limitations defense.

2. Motion Untimely

The statute of limitations applicable to habeas proceedings by federal prisoners has been codified at 28 U.S.C. § 2255(f), which generally provides that motions to vacate filed beyond the one year limitations period are barred and must be dismissed.

a. Finality of Conviction

A federal habeas petitioner's time to file under 28 U.S.C. §2255 generally begins to run on "the day on which the judgment of conviction becomes final." 28 U.S.C. §2255(f).³ Although §2255 does not define "final", the Supreme Court has applied its ordinary standard of finality, i.e. the completion of direct review (including certiorari review by the Supreme Court), or the expiration of time for such review. Clay v. UnitedStates, 537 U.S. 522, 527 (2003).

Here, Movant did not seek any direct review, and his time for doing so expired on Tuesday, July 12, 2016, 14 days after his June 28, 2016 sentencing. See Fed. R. App. P. 4(b)(1)(A) (14 days after entry of the judgment).⁴ His limitations period began running thereafter, and expired one year later, on Wednesday, July 12, 2017.⁵

b. Impediment

In his Response to the Court's Order to Show Cause, Movant argued that he was entitled to a delayed commencement under 28 U.S.C. § 2255(f)(2). (OSC Resp., Doc. 6 at 4-5.) That statute provides for a later commencement date of "the date on which the impediment to making a...