Rodella v. United States
| Decision Date | 27 March 2020 |
| Docket Number | No. CIV 19-0275 JB\CG,CIV 19-0275 JB\CG |
| Citation | 467 F.Supp.3d 1116 |
| Parties | Thomas R. RODELLA, Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — District of New Mexico |
Paul D. Mannick, Coppler & Mannick, P.C., Santa Fe, New Mexico --and-- Susan J. Clouthier, Clouthier Law, P.L.L.C., The Woodlands, Texas, Attorneys for the Petitioner.
John C. Anderson, United States Attorney, Jeremy Pena, Assistant United States Attorney, United States Attorney's Office, Albuquerque, New Mexico, Attorneys for the Respondent.
THIS MATTER comes before the Court on the oral motion for a Certificate of Appealability. See Transcript of Hearing at 4:25-5:2 (taken January 24, 2020), filed January 29, 2020 (Doc. 34)("Tr.")(Clouthier). The primary issue is whether the Court should grant Petitioner Thomas R. Rodella a Certificate of Appealability, because (i) Rodella has made a substantial showing that he has been denied a constitutional right; and (ii) there is a Court of Appeals split regarding a 28 U.S.C. § 2255 petitioner's burden of proof. The Court now determines that Rodella has not made a substantial showing that he has been denied a constitutional right. The Court, however, will grant a certificate of appealability, because there is a Court of Appeals split regarding a 28 U.S.C. § 2255 petitioner's burden of proof.
The Court held an evidentiary hearing on January 24, 2020. See Tr. at 1:11-13. The Court noted that it had issued a forty-nine-page opinion the previous night. See Tr. at 3:12-14 (Court). The Court stated that Rodella indicated that he wanted to address the certificate of appealability at the hearing. See Tr. at 4:1-3 (Court). Rodella said that he wanted to first address a case that the Court cited in its opinion, United States v. Ramon-Silva. See Tr. at 4:13-14 (Clouthier)(citing United States v. Ramon-Silva, 608 F.3d 663 (10th Cir. 2010) (" Ramon-Silva")). Rodella said that it "may or may not be the case" that Ramon-Silva was law at the time of the offense. Tr. at 4:14-15 (Clouthier). Rodella pointed out that Ramon-Silva involved aggravated assault, which requires higher proof "because the defendant had to threaten or engage in a menacing conduct towards the victim with a weapon producing death or great bodily harm." Tr. at 4:17-23 (Clouthier). Rodella emphasized that aggravated assault threatens violent force because "the aggressor communicates to his victim that he will potentially use violent force against the victim in the future." Tr. at 4:24-5:1 (Clouthier). Moreover, Rodella argued, the Ramon-Silva defendant "actually touched the victim with a weapon," which is more than "just brandishing a firearm." Tr. at 5:3-5 (Clouthier). Rodella concluded that Ramon-Silva is "different and distinguishable" from this case "and, therefore, not the law at the time of the offense." Tr. at 5:6-8 (Clouthier).
Rodella highlighted United States v. Verbickas, in which, like Rodella, the defendant was convicted under 18 U.S.C. § 242. See Tr. at 5:9-10 (Clouthier)(citing United States v. Verbickas, 75 F. App'x 705 (10th Cir. 2003) (unpublished)). Rodella emphasized that, although United States v. Verbickas concerned 18 U.S.C. § 242 ’s bodily-injury clause, the case adopted the United States Court of Appeals for the Fifth Circuit's holding in United States v. Williams, 343 F.3d 423, 433 (5th Cir. 2003), which "stated that the use, attempted use, or threatened use of a dangerous weapon can create a substantial risk of physical force." Tr. at 5:14-17 (Clouthier). Rodella noted that "substantial risk falls under the residual clause." Tr. at 5:17-18 (Clouthier). Rodella said that the Court should apply the rule of lenity and determine that United States v. Verbickas was the "the rule at the time of the conviction," and, thus, the Court used the residual clause to sentence Rodella. Tr. at 5:19-23 (Clouthier). Rodella "underst[ood]" that the Court may not agree with Rodella, so Rodella asked the Court to grant a certificate of appealability to argue this issue at the United States Court of Appeals for the Tenth Circuit. Tr. at 5:24-6:1 (Clouthier).
Rodella further noted that the United States Courts of Appeals’ split in the standard for deciding whether Rodella was sentenced under the residual clause is "ripe for consideration at the Supreme Court" of the United States of America. Tr. at 6:3-8 (Clouthier). Rodella summarized his arguments why the Court should grant the certificate of appealability: (i) the split among the Courts of Appeals regarding the standard (ii) that "maybe" "potentially different people would disagree"; and (iii) that the aggravated-assault case does not apply to a brandishing-firearm case. Tr. at 6:8-14 (Clouthier). Rodella argued that, in United States v. Davis, ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019), the Supreme Court was "super concerned" that brandishing a firearm, without more, is a crime of violence and that this issue is "the whole premise in which they found the residual clause unconstitutional." Tr. at 6:15-21 (Clouthier). Rodella explained that 18 U.S.C. § 242 says "use or attempted use of a firearm," is "not the same as threatening use" and is more similar to "possession of a weapon." Tr. at 7:2-7 (Clouthier)(citing United States v. Ryle, 778 F. App'x 598 (10th Cir. 2019), in which the defendant "had the [firearm] on his hip and just tapped it").
The United States responded to Rodella's arguments. See Tr. at 7:21 (Court). The United States first countered Rodella's assertion that Ramon-Silva was not current law at the time of sentencing. See Tr. at 7:24-8:1 (Pena). The United States noted two other cases that it cited -- United States v. Kendall, 876 F.3d 1264, 1266 (10th Cir. 2017), cert. denied, ––– U.S. ––––, 138 S. Ct. 1582, 200 L.Ed.2d 768 (2018), and United States v. Mitchell, 653 F. App'x 639, 645 (10th Cir. 2016) (unpublished). See Tr. at 8:1-2 (Pena). The United States emphasizes that United States v. Kendall concluded that bodily injury or use of a deadly or dangerous weapon render the underlying an offense a crime of violence. See Tr. at 8:7-10 (Pena). Further, the United States argued, the Tenth Circuit held in United States v. Mitchell that an element of a dangerous or deadly weapon renders the underlying offense a crime of violence. See Tr. at 8:10-13 (Pena).
The United States then countered Rodella's assertion that the analysis changes when the underlying offense is aggravated assault, because the use-of-a-dangerous-weapon requirement obligates the use to be connected to the underlying crime. See Tr. at 8:17-19. The United States then explained that, if the case were to proceed further, the jury instructions would provide the definition of the word "use." Tr. at 9:22-23 (Pena). Because 18 U.S.C. § 242 does not define "use," the United States argued that the common meaning of the word "use" would be used. Tr. at 8:24-9:1 (Pena). To undermine Rodella's argument that "use" of a dangerous weapon is similar to possession of a dangerous weapon, the United States pointed out that it is not "using [its] phone," which was in its pocket, because "use means to employ actively." Tr. at 9:2-5 (Pena). To buttress its definition of "use," the United States highlighted the 18 U.S.C. § 924(c), which defines use in a way "that requires active employment specifically." Tr. at 9:6-10 (Pena). The United States argued that a reasonable juror who reads the jury instructions as a whole "would understand that [active employment] is the Court's definition of use," which "would define the minimal culpable criminal conduct for them to convict at the 242 level, even in this case." Tr. at 9:11-16 (Pena). The United States affirmed its confidence in the Court's opinion. See Tr. at 10:7-15 (Court, Pena). When the Court asked the United States why it is "indifferent" on the certificate of appealability rather than in opposition to it, the United States explained that it hasn't "fleshed out the standard for the [Certificate of Appealability] at this time." Tr. at 10:16-23 (Court, Pena). The Court asked the United States whether the Court correctly stated it was denying the motion and dismissing the proceedings with prejudice, and the United States affirmed the Court and assured the Court that the United States would notify the Court if there is a problem with that language. See Tr. at 11:2-11 (Court, Pena).
Before Rodella made a final argument, the Court asked the United States if the jury instructions that define use are Tenth Circuit pattern instructions, which the United States confirmed they are. See Tr. at 12:7-11 (Court, Pena). The United States clarified that the definition is in the 18 U.S.C. § 924(c) elements instruction, and not the 18 U.S.C. § 242 violation instructions. See Tr. at 12:11-14 (Pena). Rodella then argued that, in United States v. Davis, the Supreme Court used the word "use" when stating that the use of a firearm does not render an underlying crime a crime of violence. Tr. at 12:17-22 (Clouthier). Rodella added that "use" is not enough to be a crime of violence under current law and is "vague enough" to not be a crime of violence under the law at the time of sentencing. Tr. at 12:21-24 (Clouthier). Rodella then noted that he believes the cases cited by the United States were in 2016, after Rodella's sentencing. See Tr. at 12:24-13:1 (Clouthier). Rodella reiterated his request for a certificate of appealability, "especially on the issue of the circuit split on the burden of proof." Tr. at 13:2-9 (Clouthier).
Under 28 U.S.C. § 2253(c)(1), "[u]nless a circuit justice or a judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from ... (B) the final order in a proceeding under section 2255." 28 U.S.C. § 2253(c)(1). The petitioner must make "a substantial showing of the denial of a constitutional right [to receive...
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