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United States v. Patillar

United States District Court, N.D. Oklahoma

June 4, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
CALVIN D. PATILLAR, Defendant.

          OPINION AND ORDER

          JAMES H. PAYNE UNITED STATES DISTRICT JUDGE

         Before the Court are (1) Defendant Calvin D. Patillar's (“Defendant”) pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody (Dkt. 235); (2) the Government's motion to dismiss Defendant's § 2255 motion (Dkt. 237); and (3) two motions filed by Defendant for the Court to take notice of several Circuit Court opinions (Dkt. 238; Dkt. 239). Defendant seeks relief pursuant to the United States Supreme Court's decision in Mathis v. United States, 136 S.Ct. 2243 (2016). The Government opposes Defendant's motion and urges the Court to dismiss the motion as an unauthorized second § 2255 motion and as untimely. For the reasons cited herein, Defendant's motion pursuant to § 2255 is DISMISSED and the Government's motion to dismiss is GRANTED.

         BACKGROUND

         In 2009, Defendant pleaded guilty to interference with commerce and aiding and abetting (robbery), in violation of 18 U.S.C. §§ 1951 and 2, and possessing a firearm in furtherance of the robbery, in violation of 18 U.S.C. § 924(c) (Counts One and Two). (See Dkt. 2 (Indictment); Dkt. 71 (Judgment & Commitment)). In advance of sentencing, the United States Probation Office prepared a Presentence Investigation Report (“PSR”) as to Defendant, in which it was recommended he be classified as a career offender under the United States Sentencing Guidelines (“Guidelines”). (PSR ¶ 20). Defendant was classified as a career offender because (1) the offense of conviction in Count One was a felony crime of violence committed when he was at least eighteen years old and (2) he had at least two prior felony convictions for crimes of violence. (PSR ¶ 20). Defendant's predicate career offender convictions were (1) two convictions for Robbery with Firearms (Oklahoma County Nos. CRF-84-5667 and CRF-84-5543); and (2) Larceny from the Person (Tulsa County No. CF-97-3952). (PSR ¶¶ 20, 24, 25, 29). Defendant's two robbery convictions were treated as one prior sentence for purposes of the career offender enhancement.

         Defendant was sentenced on April 29, 2009. At sentencing, the Court overruled Defendant's objections and adopted the PSR without change. (Dkt. 69 (Minute Sheet - Sentencing)). The Court sentenced Defendant to imprisonment for 180 months on Count One and 120 months on Count Two, with the terms running consecutive to each other-a total sentence of 300 months. (Dkt. 71 (Judgment & Commitment)). Defendant appealed his career offender sentence, arguing his prior conviction for larceny from a person was not a crime of violence and his prior robbery offense was too stale to be a crime of violence. The Tenth Circuit affirmed Defendant's sentence. See United States v. Patillar, 595 F.3d 1138 (10th Cir. 2010). Defendant sought a writ of certiorari, and on June 21, 2010, the Supreme Court denied his petition for a writ of certiorari. Patillar v. United States, 130 S.Ct. 3464 (June 21, 2010).

         On August 5, 2015, Defendant filed a § 2255 motion, arguing his sentence should be vacated in light of United States v. Johnson, 135 S.Ct. 2551 (2015).[1](Dkt. 198). On August 10, 2015, Defendant filed a supplement to his motion, pointing to additional authority in support of his argument for resentencing. (Dkt. 200). On the same day, Defendant filed a “Judicial Notice, ” in which he further argued in support of his § 2255 motion. (Dkt. 201). The Government opposed Defendant's § 2255 motion. (Dkt. 208). On March 6, 2017, the Supreme Court held the Guidelines are not subject to a vagueness challenge under the Due Process Clause. Beckles v. United States, 137 S.Ct. 886 (2017). Defendant then moved to withdraw his § 2255 motion in light of Beckles, agreeing with the Government that Johnson's holding did not apply to Defendant's case. (Dkt. 227, Dkt. 230). On April 25, 2017, the Court granted Defendant's request to withdraw his § 2255 motion. (Dkt. 231).

         On June 21, 2017, Defendant filed another motion pursuant to 28 U.S.C. § 2255, which is now pending. (Dkt. 235). Defendant raises one ground in this motion-that his Oklahoma larceny conviction is not a valid career offender predicate in light of Mathis v. United States, 136 S.Ct. 2243 (2016). (Dkt. 235, at 4, 13). Defendant asserts his motion is timely, because application of Mathis is permitted in considering a first § 2255 motion. (Dkt. 235, at 10). The Government filed a motion to dismiss Defendant's § 2255 motion, arguing it was an unauthorized second § 2255 motion, and it was untimely filed. (Dkt. 237). Defendant thereafter filed two motions, asking the Court to take judicial notice of several Circuit Court decisions. (Dkt. 238; Dkt. 239). Defendant did not otherwise respond to the Government's motion to dismiss. The pending motions are fully briefed and ripe for this Court's review.

         DISCUSSION

         In Mathis, the United States Supreme Court held that a prior conviction for a state crime does not qualify as a predicate offense under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”) if the elements of the statute of conviction are broader than those of a listed generic form of the offense. 136 S.Ct. at 2251. In such a circumstance, the Court explained, “[h]ow a given defendant actually perpetrated the crime-what we have referred to as the ‘underlying brute facts or means' of commission-makes no difference; even if his conduct fits within the generic offense, the mismatch of elements saves the defendant from an ACCA sentence.” Id. (internal quotation omitted). The Tenth Circuit has since stated in an unpublished opinion that Mathis did not announce a new rule under § 2255(f)(3), and it does not have retroactive application to cases on collateral review. See United States v. Taylor, 672 Fed.Appx. 860, 864 (10th Cir. 2016).

         I. Second or Successive § 2255

         As a threshold matter, the Court must address whether Defendant's pending § 2255 should be treated an unauthorized second or successive § 2255. Defendant previously litigated a § 2255 motion pertaining to this case. However, he voluntarily withdrew the motion, before the Court issued a decision on the merits. In his Motion to Withdraw, Defendant stated, “After extensive research efforts, Defendant has come to the conclusion and agrees with the government's foregone conclusion in their response (Dkt. 208) that Defendant does not have a ‘Johnson' claim, nor does the ‘Johnson' holding apply to Career Criminal Offenders.” (Dkt. 230, at 1).

         The government contends that Defendant's previous § 2255 motion should count as a prior motion under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), and therefore Defendant must meet AEDPA's requirements for filing a successive motion. The Court agrees. Defendant plainly conceded his previous § 2255 motion was meritless and the Government's position was correct, because Johnson does not apply to a career offender sentence. See Beckles v. United States, 137 S.Ct. 886 (2017). Therefore Defendant's voluntary withdrawal, though not dismissed by court action on the merits, operates as a decision on the merits for purposes of AEDPA. See Haro-Arteaga v. United States, 199 F.3d 1195 (10th Cir. 1999); Felder v. McVicar, 113 F.3d 696, 698 (7th Cir.1997) (“a petitioner for habeas corpus cannot be permitted to thwart the limitations on the filing of second or successive motions by withdrawing his first petition as soon as it becomes evident that the district court is going to dismiss it on the merits.”).

         The Court finds Defendant's pending § 2255 motion is a second or successive motion. Defendant did not receive authorization from the Tenth Circuit to proceed with a second or successive § 2255 motion. See 28 U.S.C. § 2255(h). As a result, this Court is unable to reach the merits of Defendant's Mathis claim.

         Although the Court is empowered to transfer an unauthorized second or successive § 2255 motion to the Tenth Circuit, the Court instead will dismiss Defendant's motion, because his Mathis claim is not retroactively applicable to cases on collateral review. See 28 U.S.C. § 1631; In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008) (“Factors considered in deciding whether a transfer is in the interest of justice include whether the claims would be time barred if filed anew in the proper forum, whether the claims alleged are likely to have merit, and ...


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