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United States v. Davila

United States District Court, E.D. Michigan, Southern Division

June 26, 2018

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
ARMANDO DAVILA, Defendant- Petitioner.

          ORDER DENYING DEFENDANT'S 28 U.S.C. § 2255 MOTION (DOC. 99) AND DENYING CERTIFICATE OF APPELABILITY

          GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE.

         Now before the court is Defendant-Petitioner Armando Davila's untimely pro se motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. Defendant argues (1) he was improperly classified as a career offender because his two prior assault convictions did not meet the requirements for that enhancement, (2) he is innocent of the career offender enhancement pursuant to Mathis v. United States, 136 S.Ct. 2243 (2016) and (3) Mathis announced a new rule of constitutional law that is retroactive. Because Defendant's § 2255 motion is untimely and procedurally defaulted, and because Defendant was properly classified as a career offender, Defendant's § 2255 motion shall be denied.

         I. Background

         Defendant pled guilty to conspiracy to possess with intent to distribute cocaine and was sentenced to 188-months. In his plea agreement, he agreed that he was a career offender. Defendant was sentenced as a career offender under U.S.S.G. §4B1.1(a) because he had pleaded guilty to a "controlled substance offense" and prior to this crime, he had a conviction for a "controlled substance offense," and he had two convictions for a "crime of violence," one, for assault with intent to do great bodily harm and two, for assault of a prison employee. According to the Presentence Investigative Report ("PSR"), Defendant was previously found guilty of assault with intent to do great bodily harm following a bench trial. The underlying facts of that case were that Defendant, along with two others, attacked a man with golf clubs and stole his gold necklace. The victim suffered a broken collarbone, lacerations to his head, and other injuries. According to the PSR, the second assault involved Defendant striking a corrections officer on the head.

         Defendant filed an appeal arguing that this court erred by not applying a U.S.S.G. § 4A1.3 departure for an over-represented criminal history. The Sixth Circuit dismissed Defendant's appeal based on the appellate waiver provision in the plea agreement.

         In June, 2016, Defendant filed a prior § 2255 motion through appointed counsel from the Federal Defender's Office which also argued that he was improperly classified as a career offender. In that motion, Defendant argued that the Supreme Court's opinion in Johson v. United States, 135 S.Ct. 2551 (2015), which vacated the residual clause of the Armed Career Criminal Act ("ACCA") as being void for vagueness, should also void the Career Offender Guideline's definition of "crime of violence." But when the Sixth Circuit rejected that argument in Beckles v. United States, 137 S.Ct. 886, 890 (2017), he withdrew his § 2255 motion.

         II. STANDARD OF REVIEW

         To obtain relief under 28 U.S.C. § 2255, a petitioner must demonstrate "(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law ... so fundamental as to render the entire proceeding invalid." Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)). He "must clear a significantly higher hurdle than would exist on direct appeal" and establish a "fundamental defect in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error violative of due process." Fair v. United States, 157 F.3d 427, 430 (6th Cir. 1998) (internal quotations and citations omitted).

         III. Analysis

         The court shall deny Defendant's § 2255 motion for three reasons: (1) it is untimely; (2) it is procedurally defaulted; and (3) Defendant was properly classified as a career offender.

         First, Defendant's § 2255 motion is untimely. There is a one-year period of limitations for a § 2255 motion. The applicable limitation period runs from the latest of-

(1) the date on which the judgment of conviction becomes final;
(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 making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court and made retroactively applicable to ...

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