United States District Court, E.D. Washington
JOSE A. GAMEROS GARCIA, Movant,
UNITED STATES OF AMERICA, Respondent.
ORDER DENYING § 2255 MOTION
FREMMING NIELSEN SENIOR UNITED STATES DISTRICT JUDGE.
the Court is Movant's 28 U.S.C. § 2255 Motion to
Vacate, Set Aside or Correct Sentence. ECF No. 321. The
Motion is submitted by Mr. Garcia, who is appearing pro
se in these proceedings.
Garcia was indicted on August 21, 2012, for: (1) Possession
with Intent to Distribute 500 Grams or More of a Mixture or
Substance Containing Methamphetamine; and (2) Conspiracy to
Distribute 500 Grams or More of a Mixture or Substance
containing Methamphetamine. At the time of the change of plea
hearing, Mr. Garcia pled to an Information Superseding
Indictment alleging two counts, (1) Possession with Intent to
Distribute Methamphetamine; and (2) Possession of a Firearm
in Furtherance of a Drug Trafficking Crime. Mr. Garcia
appealed the Judgment, but his appeal was dismissed for
failure to prosecute.
statute provides that only if the Motion, file and records
"conclusively show that the movant is entitled to no
relief" may the Court summarily dismiss the Motion
without sending it to the United States Attorney for
response. 28 U.S.C. § 2255(b). The Rules regarding
Section 2255 Proceedings similarly state that the Court may
summarily order dismissal of a 2255 motion without service
upon the United States Attorney only "if it plainly
appears from the motion, and any attached exhibits, and the
record of prior proceedings that the movant is not entitled
to relief, the judge must dismiss the motion and direct the
clerk to notify the moving party." Rule 4(a),
Rules-Section 2255 Proceedings. Thus when a movant fails to
state a claim upon which relief can be granted or when the
motion is incredible or patently frivolous, the district
court may summarily dismiss the motion. Cf. United States
v. Burrows, 872 F.2d 915, 917 (9th Cir. 1989);
Marrow v. United States, 772 F.2d 525, 526 (9th Cir.
relief, Mr. Garcia must establish that (1) he is in custody
under a sentence of this federal court; (2) his request for
relief was timely; and (3) the court lacked either personal
or subject matter jurisdiction, the conviction or sentence is
unconstitutional, the conviction or sentence violates federal
law, or the sentence or judgment is otherwise open to
collateral attack. 28 U.S.C. § 2255.
Garcia alleges that his sentence inappropriately relies upon
the residual clause in 18 U.S.C. § 924(c). The statute
increases sentences by a set amount for those persons who
have committed either a crime of violence or a drug
trafficking crime. "[A]ny person who, during and in
relation to any crime of violence or drug trafficking crime .
. . shall in addition to the punishment provided for such
crime of violence or drug trafficking crime (i) be sentenced
to a term of imprisonment of not less than 5 years. . ."
18 U.S.C. § 924(c). The statute defines both a drug
trafficking crime and a crime of violence. A "'drug
trafficking crime' means any felony punishable under the
Controlled Substances Act (21 U.S.C. 801 et. seq.) . .
.." The definition for a crime of violence requires use
of force or any crime, "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)(B).
Johnson v. United States, the Supreme Court
addressed a clause in 18 U.S.C. § 922(e)(2)(b) defining
a crime of violence. The Supreme Court determined that the
language in that particular clause was unconstitutionally
vague and therefore violated the Due Process Clause. 135
S.Ct. 2551 (2015). Johnson did not address 18 U.S.C.
§ 924(c). Further, Johnson only addressed the
definition of a crime of violence. Johnson did not
disturb application of § 924 for drug trafficking
Plea Agreement, Mr. Garcia agreed that the Government would
have to prove that "Defendant possessed the firearm in
furtherance of possessing with the intent to distribute a
mixture or substance containing methamphetamine, as charged
in Count 1." ECF No. 208, p. 4 - 5. Possession of
methamphetamine with the intent to distribute, 21 U.S.C.
§ 841(a)(1), (b)(1)(C), as charged in Count 1 of the
Information Superseding Indictment, is a drug trafficking
crime, not a crime of violence.
statute establishes a one year period of limitation for
filing a § 2255 motion which runs from the latest of
(1) the date on which the judgment of conviction becomes
(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 ...