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Rith v. United States

United States District Court, D. Utah, Central Division

August 29, 2017

MESA RITH, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER AND MEMORANDUM DECISION

          TENA CAMPBELL U.S. District Court Judge

         In 2001, petitioner Mesa Rith pleaded guilty to assaulting a federal officer in violation of 18 U.S.C. § 111(a)(1). Now, more than a decade after his judgment of conviction became final, Mr. Rith asks the court to correct his sentence based on the United States Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). Because Johnson does not apply to his case, the court dismisses Mr. Rith's motion as untimely.[1]

         BACKGROUND

         Mr. Rith pleaded guilty to assaulting a federal officer in 2001. Because of a prior conviction, Mr. Rith's sentence was enhanced under the United States Sentencing Guidelines (Guidelines) and the court sentenced him to 96 months of imprisonment. The court set Mr. Rith's 96-month sentence to run consecutively with a sentence imposed in another federal case.

         Mr. Rith appealed his sentence, but the United States Court of Appeals for the Tenth Circuit affirmed the judgment. United States v. Rith, 63 Fed.App'x 463 (10th Cir. 2003) (unpublished). In 2004, Mr. Rith moved under 28 U.S.C. § 2255 to have his sentence vacated. The court denied his motion. (Order & Mem. Decision, Case No. 2:04-cv-787, ECF No. 10.) On April 29, 2016-eleven years after Mr. Rith filed his first § 2255 motion-Mr. Rith filed a second § 2255 motion, this time seeking to have his sentence corrected after the Supreme Court's decision in Johnson.

         The Government moves to dismiss Mr. Rith's § 2255 motion. The Government argues, among other things, that Mr. Rith's motion is barred by § 2255's statute of limitations. Mr. Rith responds that his motion qualifies as timely because the one-year statute of limitations restarted when the Supreme Court decided Johnson in 2015.

         ANALYSIS

         “A district court is authorized to modify a Defendant's sentence only in specified instances where Congress has expressly granted the court jurisdiction to do so.” United States v. Blackwell, 81 F.3d 945, 947 (10th Cir. 1996). Under 28 U.S.C. § 2255, a prisoner can move the court to vacate or correct a sentence if the sentence was unconstitutional or otherwise illegal.

         Ordinarily, a petitioner has one year to file his § 2255 motion from “the date on which the judgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1). But when a petitioner asserts a right “recognized by the Supreme Court and made retroactively applicable to cases on collateral review, ” the one- year period begins to run from the “date on which the right asserted was initially recognized by the Supreme Court.” Id. at § 2255(f)(3).

         Here, Mr. Rith pleaded guilty to assaulting a federal officer in 2001. The Court sentenced Mr. Rith that same year. Though Mr. Rith appealed his sentence, the Tenth Circuit rejected his appeal in 2003. Mr. Rith did not seek review with the Supreme Court, nor did he seek a rehearing with the Tenth Circuit. Accordingly, his convictions became final 90 days later-in September 2003. See United States v. Martin, 357 F.3d 1198, 1200 (10th Cir. 2004). Absent an event restarting the one-year statute of limitations, Mr. Rith would be time-barred from filing a petition after September 2004. See 28 U.S.C. § 2255(f)(1).

         Acknowledging that his motion would be time-barred, Mr. Rith contends that the Supreme Court in Johnson recognized a right that was made retroactively applicable to cases like his on collateral review. In Johnson, the Supreme Court ruled that the residual clause of the Armed Career Criminal Act (ACCA) was unconstitutionally vague. 135 S.Ct. at 2563. Mr. Rith asserts that because his sentence was mandatorily enhanced under the residual clause of the Guidelines, and because the language in the residual clause of the ACCA and the Guidelines is identical, Johnson applies to his case.

         Mr. Rith also acknowledges that the Supreme Court recently ruled in United States v. Beckles that sentences imposed after the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005)-where the Supreme Court ruled that the Guidelines were advisory, not mandatory-are not subject to vagueness challenges. 137 S.Ct. 886, 890 (2017). However, Mr. Rith was sentenced before the Supreme Court decided Booker. As such, Mr. Rith argues that Beckles does not bar Johnson's application to pre-Booker sentencings.

         To determine whether Johnson restarted the one-year statute of limitations for Mr. Rith's motion, the court must ask whether Mr. Rith asserts the same right announced in Johnson, or whether he instead asserts a new right that the Supreme Court has yet to recognize. 28 U.S.C. § 2255(f)(3). A right qualifies as “new” if it “is not dictated by precedent.” Chaidez v. United States, 568 U.S. 342, 347 (2013) (citation and internal quotation marks omitted). A right is “dictated by precedent” only if “it is apparent to all reasonable jurists.” Id. (citation and internal quotation marks omitted). So the inquiry is whether Johnson dictates invalidation of the Guidelines' residual clause.

         After reviewing Johnson, the parties' briefing, and other caselaw, the court concludes that Johnson does not announce the right that Mr. Rith asserts: Johnson does not dictate invalidation of the Guidelines' residual clause. Johnson explicitly invalidates only the residual clause of the ACCA. 135 S.Ct. at 2563. And Justice Sotomayor confirmed in Beckles that the Supreme Court has not yet answered “whether defendants sentenced to terms of imprisonment before [the Supreme Court's] decision in United States v. Booker . . . may mount vagueness attacks on their sentences.” Beckles, 137 ...


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