United States District Court, W.D. Washington, Seattle
ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT
SENTENCE UNDER 28 U.S.C. § 2255
S. Lasnik United States District Judge.
matter comes before the Court on petitioner Jose Lucas
Zamora's pro se motion under 28 U.S.C. §
2255 to vacate, set aside, or correct his sentence. Dkt. # 1.
For the reasons set forth below, the Court DENIES
October 2008, following a four-day trial, a jury found
petitioner guilty of conspiracy to distribute 50 or more
grams of pure methamphetamine (in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A), and 846), distribution
of at least 5 grams of pure methamphetamine (21 U.S.C.
§§ 841(a)(1), 841(b)(1)(B), and 18 U.S.C. §
2), and possession with intent to distribute 500 or more of a
mixture or substance containing methamphetamine (21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A), and 18 U.S.C. §
sentencing, the Court found petitioner faced an offense level
of 36 and a criminal history category of four. Case No.
CR08-36RSL, Dkt. # 108. That criminal history category
reflected eight criminal history points based on multiple
previous applicable Sentencing Guidelines generated a
recommended sentence of 262 to 327 months. Case No.
CR08-36RSL, Dkt. # 108 at 18. The Court determined a
Guidelines sentence would be longer than necessary, and
instead sentenced petitioner to 180 months' imprisonment,
plus five years of supervised release. Id.
Petitioner's conviction was affirmed on appeal. Case No.
CR08-36RSL, Dkt. ## 128, 129.
§ 2255 motion, petitioner argues several Supreme Court
cases decided since then undermine the legality of his
sentence. He cites the Supreme Court's decisions in
Johnson v. United States, 135 S.Ct. 2551 (2015), and
Mathis v. United States, 136 S.Ct. 2243 (2016). He
also refers to Beckles v. United States, 137 S.Ct.
886 (2017), which was pending before the Supreme Court when
petitioner filed this motion but has since been decided.
motion fails for two reasons. First, petitioner's motion
is untimely. Motions under § 2255 must be filed within
one year of the date on which the Supreme Court initially
recognized the right asserted. 28 U.S.C. § 2255(f)(3).
The Supreme Court decided Johnson June 26, 2015,
see 135 S.Ct. at 2551, and petitioner filed this
motion March 6, 2017, Dkt. # 1, more than one year later. To
the extent petitioner asserts rights recognized by the
Supreme Court in Johnson, his motion is time-barred.
petitioner's motion fails because Johnson,
Mathis, and Beckles do not apply to his
case. Johnson and Mathis involved a
sentencing enhancement in the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), that imposes a
15-year minimum sentence on offenders with two or more drug
offenses or violent felonies. ACCA defines “violent
felony” as including any crime that is “burglary,
arson, or extortion, [or] involves use of explosives.”
Id. § 924(e)(2)(B)(ii). The definition also has
a residual clause that includes any crime that
“otherwise involves conduct that presents a serious
potential risk of physical injury to another.”
Johnson, the Supreme Court struck down the residual
clause as unconstitutionally vague, 135 S.Ct. at 2563, which
the Court later determined was a substantive decision
retroactive in cases on collateral review, Welch v.
United States, 136 S.Ct. 1257, 1268 (2016). In
Mathis, the Court applied the “categorical
approach” for determining whether state crimes fall
under the generic crimes ACCA enumerates, and held state
convictions do not qualify if an element of the state crime
is broader than an element of the listed generic offense. 136
S.Ct. at 2251. Neither case impacts the legality of
petitioner's sentence. He was not convicted or sentenced
under the ACCA sentencing provisions at issue in either case,
and his Sentencing Guidelines range was not enhanced by a
prior conviction for a “violent felony” or
“crime of violence.”
does Beckles affect petitioner's sentence.
There, the petitioner brought a vagueness challenge to an
enhancement in the Sentencing Guidelines that defines
“crime of violence” with the same residual clause
language at issue in Johnson. Beckles, 137
S.Ct. at 890. The Beckles Court held the Guidelines
enhancement survived Johnson because the Guidelines
are merely advisory and not subject to vagueness challenges.
Id. at 895. That holding forecloses relief for
petitioner on this motion. Even had petitioner's
Guidelines range been enhanced by a prior “crime of
violence, ” the Supreme Court's holding in
Beckles makes clear he would not be entitled to
Court further finds that no evidentiary hearing is required,
because the record conclusively shows petitioner is not
entitled to relief. See 28 U.S.C. § 2255(b).
Likewise, petitioner has not substantially shown a denial of
his constitutional rights, and the Court concludes no
certificate of appealability should issue. See id.
foregoing reasons, the Court ORDERS:
Petitioner's motion (Dkt. # 1) is hereby DENIED.
Petitioner is DENIED a certificate of appealability under ...