Her v. United States ( 2020 )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO TXAI TAY HER, Petitioner, v. Civ No. 20-cv-108 KG-GJF CR No. 17-cr-2903 KG UNITED STATES OF AMERICA, Respondent. MEMORANDUM OPINION AND ORDER This matter is before the Court on Txai Tay Her’s pro se Petition for Sentence Reduction Pursuant to United States v. Davis (Petition) (Doc. 106).1 Petitioner is a federal prisoner and proceeding pro se. He asks the Court to vacate his 60-month sentence for carrying a firearm in relation to a drug trafficking crime (18 U.S.C. § 924(c)).2 Having reviewed the Petition sua sponte, the Court finds relief is unavailable under Davis. Petitioner may withdraw or amend the pleading before it is recharacterized as his “first” 28 U.S.C. § 2255 action. I. Background In 2017, U.S. Border Patrol agents discovered Petitioner riding in a vehicle with 82 pounds of marijuana and several firearms. (Doc. 1) at 3. He pled guilty to the following charges pursuant to a Plea Agreement: 1 Unless otherwise noted, all docket references are to the criminal case, 17-cr-2903 KG. 2 The Petition states the Court imposed a 63-month sentence for the Section 924(c) conviction. (Doc. 106) at 1. However, the Judgment reflects the Court actually imposed a 60-month term under that statute. (Doc. 100) at 2, 3. The 63-month term was imposed as to the felon-in-possession charge, 11 U.S.C. § 922(g)(1). Id. The Court assumes Petitioner transposed the two charges and will use the sentence set forth in the Judgment. (Count 1): Conspiracy to possess with intent to distribute a mixture containing marijuana in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(D) and 846; (Count 2): Possession with intent to distribute a mixture containing marijuana in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(D) and 18 U.S.C. § 2; (Count 3): Using and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c); and (Count 4): Being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (Doc. 84) at 2. The Court accepted the plea and sentenced Petitioner to 60 months imprisonment on Counts 1 through 3 and 63 months imprisonment on Count 4. (Doc. 100) at 3. The 60-month terms imposed on Counts 1 and 2 ran concurrently, and all other terms ran consecutively. Id. Hence, the total sentence was 123 months imprisonment. Id. The Court entered Judgment on the conviction on October 15, 2018. Id. Petitioner did not appeal, in accordance with his waiver of rights under the Plea Agreement. (Doc. 84) at 9-10. On February 5, 2020, Petitioner file the instant Petition. (Doc. 106). He seeks relief under United States v. Davis, 139 S. Ct. 2319 (2019). Because Davis invalidated the Residual Clause of 18 U.S.C. § 924(c), Petitioner asks the Court to vacate the 60-month sentence on Count 3. II. Discussion The Petition is styled as a request for a sentence reduction. However, the proper vehicle for challenging a conviction based on new Supreme Court law is a habeas corpus petition under 28 U.S.C. § 2255. See McIntosh v. United States Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 2 1997) (A habeas … proceeding “attacks the … duration of a prisoner’s confinement”); Johnson v. Taylor, 347 F.2d 365, 366 (10th Cir. 1965) (“The exclusive remedy for testing the validity of a judgment and sentence… is … 28 U.S.C. § 2255”). The Supreme Court established a special procedure for situations where, as here, the petitioner challenges his sentence without invoking the habeas statute. See Castro v. United States, 540 U.S. 375, 382 (2003). Before “recharacteriz[ing] a pro se litigant’s motion as a request for relief under [Section] 2255,” the Court must “warn[] [him] about the consequences of the recharacterization.” Id. Recharacterization will mean that Petitioner is using his “first” Section 2255 habeas motion, and “any subsequent [Section] 2255 motions will be subject to the restrictions on ‘second or successive’ filings.” Id. at 383. Said differently, if Petitioner wishes to prosecute his Davis claim now, he must obtain permission from the Tenth Circuit before filing any later habeas claims. See 28 U.S.C. § 2255(h); In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008). When weighing his options, Petitioner is further advised that he cannot obtain Davis relief. Davis pertains to 18 U.S.C. § 924(c)(3)(B). That section, known as the Residual Clause, criminalizes the use of a firearm in connection with any “crime of violence … involv[ing] a substantial risk of physical force.” Davis found this definition of “crime of violence” to be unconstitutionally vague. 139 S. Ct. at 2326. The Supreme Court reasoned that the definition required judges to “estimat[e] the degree of risk posed by a crime’s imagined ‘ordinary case,” which produces inconsistent results. Id. In this case, Petitioner was not convicted of using a firearm during a crime of violence. He used a firearm during a drug trafficking crime in violation of Section 924(c)(1)(A). Therefore, Davis has no impact on Petitioner’s conviction or sentence. See United States v. Hopper, No. 19-2110 (10th Cir. Oct. 31, 2019) (unpublished 3 order) (Davis only provides relief from convictions “for using ... a firearm during ... a crime of violence.”); U.S. v. Nietfeld, 2019 WL 7116089, at *2 (D. Kan. Dec. 23, 2019) (Davis has no impact on “possession of a firearm in furtherance of a drug trafficking crime.”); Reyes v. United States, 2019 WL 5265293, at *2 (D. Utah Oct. 17, 2019) (same); United States v. Becerra- Molina, 2019 WL 4144314, at *2 (N.D. Okla. Aug. 30, 2019) (same). Consistent with Castro v. United States, the Court will provide Petitioner “an opportunity to withdraw the [Petition]” so that it will not count as his first Section 2255 filing. 540 US. at 376. Petitioner may also “amend [the Petition] so that it contains all the [Section] 2255 claims he believes he has.” Jd. If Petitioner elects to amend the Petition, he is advised that it will likely be time-barred. Section 2255 claims must ordinarily be filed within one year after the Judgment becomes final (here, October 30, 2018), unless equitable tolling applies. See 28 U.S.C. § 2255(f). If Petitioner takes no action at all, the Court will dismiss the Petition on the merits without further notice. IT IS ORDERED: 1. Within thirty (30) days of entry of this Order, Petitioner may withdraw his Petition for Sentence Reduction Pursuant to United States v. Davis (Doc. 106) or, alternatively, file an amended 28 U.S.C. § 2255 habeas corpus petition. 2. If Petitioner declines to withdraw or amend, the Court will dismiss the Petition on the merits. aitiatlbogpnss UNITED STATES DISTRICPIUDGE