Bickle v. United States ( 2020 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 UNITED STATES OF AMERICA, ) 4 ) Respondent/Plaintiff, ) Case No.: 2:10-cr-00565-GMN-PAL-1 5 vs. ) 6 ) ORDER NICHOLAS BICKLE, ) 7 ) Petitioner/Defendant. ) 8 ) 9 10 Pending before the Court is Petitioner Nicholas Bickle’s (“Petitioner’s”) Motion to 11 Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255, (ECF No. 343). 12 Also pending before the Court is the Government’s Motion to Dismiss, (ECF No. 345), 13 Petitioner’s Motion. Petitioner filed a Response, (ECF No. 347). For the reasons discussed 14 below, the Government’s Motion is GRANTED, and Petitioner’s Motion is DISMISSED 15 without prejudice. 16 I. BACKGROUND 17 On October 7, 2011, a jury found Petitioner guilty of Counts 1, 2, and 5–15 of the Third 18 Superseding Indictment: (1) Conspiracy to Unlawfully Receive, Transport, Possess and 19 Transfer Machineguns and Stolen Firearms, and to Deal in Firearms in Violation of 18 U.S.C. 20 922(a), (j) & (k) and 26 U.S.C. §§ 5861(d), (j), and (k), in violation of 18 U.S.C. § 371; (2) 21 Dealing in Firearms Without a License; Aiding and Abetting, in violation of 18 U.S.C. §§ 22 922(a)(1)(A) and (2); (5)–(8) Unlawful Possession and Transfer of Machineguns; Aiding and 23 Abetting, in violation of 18 U.S.C. §§ 922(o) and 2; (9)–(13) Unlawful Possession, 24 Concealment, Sale and Disposition of Stolen Firearms; Aiding and Abetting, in violation of 18 25 U.S.C. §§ 922(j) and 2; (14) Receiving, Concealing and Retaining Property of the United States 1 Government, in violation of 18 U.S.C. § 641; and (15) Transportation by, and Distribution of 2 Explosives, to a Non-Licensee, in violation of 18 U.S.C. § 842(a)(3). (Mins. Proceedings, ECF 3 No. 191); (J., ECF No. 264). The Court sentenced Petitioner to 60-months custody each for 4 Counts 1 and 2, to run concurrently; 120-months custody each for Counts 5–14, to run 5 concurrently; and 90-months custody for Count 15, to run consecutively to the preceding 6 counts, for a total of 210-months custody. (J., ECF No. 264). 7 On July 27, 2012, Defendant appealed his sentence to the Ninth Circuit Court of 8 Appeals, (Notice Appeal, ECF No. 271), which the Ninth Circuit affirmed. (Mem. USCA, ECF 9 No. 311). Defendant thereafter filed his first motion to vacate, set aside, or correct his sentence 10 pursuant to 28 U.S.C. § 2255, (ECF No. 329). This Court denied that motion on January 13, 11 2016. (Order, ECF No. 337). 12 On June, 18 2020, Petitioner filed the present Motion, his second motion to vacate, set 13 aside, or correct his sentence pursuant to 28 U.S.C. § 2255, (ECF No. 343), based on the U.S. 14 Supreme Court’s decision in Rehaif v. United States, 139 S. Ct. 2191 (2019). In Rehaif, the 15 U.S. Supreme Court held that to convict a defendant under 18 U.S.C. §§ 922(g) and 924(a)(2), 16 “the Government must prove both that the defendant knew he possessed a firearm and that he 17 knew he belonged to the relevant category of persons barred from possessing a firearm.” Id. at 18 2200. In his Motion, Petitioner claims that Rehaif retroactively invalidates his “indictment and 19 convictions due to the insufficient absence of essential elements of the crime charged.” (Mot. 20 Vacate 1:15–25, ECF No. 343). 21 On June 18, 2020, Petitioner also filed with the Ninth Circuit an application for leave to 22 file a second or successive § 2255 petition. (Mot. Vacate 2:1–3, ECF No. 343). The Ninth 23 Circuit elected to hold this application in abeyance pending their decision in Tate v. United 24 States, No. 20-70785, because it presents a similar issue: whether a petitioner can file a 25 successive motion under 28 U.S.C. § 2255(h) in light of the U.S. Supreme Court’s ruling in 1 Rehaif. The Government now moves to dismiss Petitioner’s Motion as an unauthorized 2 successive § 2255 motion. (Mot. Dismiss 2:3–7, ECF No. 345). 3 II. LEGAL STANDARD 4 Under 28 U.S.C. § 2255, a Petitioner may file a motion requesting the Court which 5 imposed sentence to vacate, set aside, or correct the sentence. 28 U.S.C. § 2255(a). “A 6 petitioner is generally limited to one motion under § 2255, and may not bring a second or 7 successive motion unless it meets the exacting standards of 28 U.S.C. § 2255(h).” United States 8 v. Washington, 653 F.3d 1057, 1059 (9th Cir. 2011) (quotations omitted). “This section 9 provides that such a motion cannot be considered unless it has first been certified by the court 10 of appeals to contain either ‘(1) newly discovered evidence that, if proven and viewed in light 11 of the evidence as a whole, would be sufficient to establish by clear and convincing evidence 12 that no reasonable factfinder would have found the movant guilty of the offense,’ or ‘(2) a new 13 rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, 14 that was previously unavailable.’” Id. (quoting § 2255(h)). 15 III. DISCUSSION 16 In the present case, Petitioner’s Motion is a successive § 2255 motion.1 The Ninth 17 Circuit has held that “[a] second or successive § 2255 petition may not be considered by the 18 district court unless petitioner obtains a certificate authorizing the district court to do so.” 19 Alaimalo v. United States, 645 F.3d 1042, 1054 (9th Cir. 2011) (citing 28 U.S.C. § 2255(h)). A 20 court of appeals may certify a successive § 2255 petition when “the claim relies on a new rule 21 of constitutional law, made retroactive to cases on collateral review by the Supreme Court that 22 was previously unavailable.” 28 U.S.C. § 2244(b)(2)(A). As such, Petitioner’s successive § 23 2255 motion depends on the Ninth Circuit concluding that Rehaif announced a new rule of 24 25 1 Petitioner filed his first § 2255 motion in 2015, (ECF No. 329), which the Court denied in 2016. (See Order, ECF No. 337). Therefore, the instant Motion, filed in 2020, is a successive motion. 1 constitutional law that may be applied retroactively to Petitioner’s criminal case. However, the 2 Ninth Circuit recently held in Tate that “Rehaif announced a statutory, rather than 3 constitutional, rule . . . . for purposes of filing a second or successive § 2255 motion.” Tate v. 4 United States, No. 20-70785, 2020 WL 7331896, at *2 (9th Cir. 2020). In light of Tate, 5 Petitioner’s successive § 2255 motion cannot meet the “exacting standards” of 28 U.S.C. § 6 2255(h). Accordingly, the Court grants the Government’s Motion to Dismiss. 7 IV. CONCLUSION 8 IT IS HEREBY ORDERED that the Government’s Motion to Dismiss, (ECF No. 345), 9 is GRANTED. 10 IT IS FURTHER ORDERED that Petitioner’s Motion to Vacate, Set Aside, or Correct 11 Sentence under 28 U.S.C. § 2255, (ECF No. 343), is DISMISSED without prejudice. 12 DATED this _1_7___ day of December, 2020. 13 14 ___________________________________ Gloria M. Navarro, District Judge 15 United States District Court 16 17 18 19 20 21 22 23 24 25