United States District Court, N.D. Oklahoma
OPINION AND ORDER
H. PAYNE UNITED STATES DISTRICT JUDGE
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.
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
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).
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).(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).
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.
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).
Second or Successive § 2255
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).
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.”).
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.
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,