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United States v. Myers

United States District Court, D. Hawaii

May 13, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
DANIEL LYNN MYERS Defendant.

          DEFENDANT-PEITIONER'S MOTION FOR A RULING THAT HIS 2255 MOTION IS NOT A SECOND & SUCCESSIVE ONE UNDER 2255(h) OR, ALTERNATIVELY, TO REFER THIS MATTER TO THE NINTH CIRCUIT FOR 2255 CERTIICATION

          SUSAN OKI MOLLWAY, District Judge.

         Defendant-Petitioner has filed a second-in-time 28 U.S.C. 2255 motion, raising a claim under Johnson v. United States, 135 S.Ct. 2551 (2015), which raises the question of whether his present 2255 motion is a "second or successive" one that cannot be filed unless the Ninth Circuit, pursuant to 2255(h), certifies it as containing a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

         In his memorandum in support of this motion, the petitioner lays out the argument for why his present #2255 motion is not a second or successive one and does not, therefore, trigger the certification 2255(h) requires. If this Court disagrees, however, and rules the he is mistaken, he here urges this Court to refer this matter to the Ninth Circuit for it to provide the certification that #2255(h) requires. The Ninth Circuit's Circuit Rule 22-3(a) explicitly requires this Court to do so once it concludes that a petitioner has mistakenly filed a second or successive #2255 motion in this Court without the certification that 2255(h) requires. Cir. R. 22-3(a) ("[i]f a second or successive petition or motion... is mistakenly submitted to the district court, the district court shall refer it to the court of appeals".)

         Time, moreover, is short for doing so. As the petitioner's 2255 motion indicates, his claim arises from the Supreme Court's June 26, 2015, decision in Johnson. The one-year limitations period for filing his present 2255 motion requires filing it on or before June 25, 2016. Thus, either a ruling from this Court that his present 2255 motion is not a second or successive one or, alternatively, section 2255(h) certification from the Ninth Circuit, needs to occur before then.

         The petitioner therefore urges this Court to address this issue with the immediacy it requires.

         For the reasons noted above and discussed in his memorandum in support of this motion, this Court should rule that the petitioner's present 2255 motion may proceed in this Court without 2255(h) certification, If, on the other hand, this Court rules that such certification is required, this Court should immediately refer this matter to the Ninth Circuit pursuant to Cir. R. 22-3(a).

         DATED: Maui, Hawai'i, April 8, 2016

         Motion to Vacate, Set Aside, or Correct a Sentence By a Person in Federal Custody

         (Motion Under 28 U.S.C. § 2255)

         Instructions

         1. To use this form, you must be a person who is serving a sentence under a judgment against you in a federal court. You are asking for relief from the conviction or the sentence. This form is your motion for relief.

         2. You must file the form in the United States district court that entered the judgment that you are challenging. If you want to challenge a federal judgment that imposed a sentence to be served in the future, you should file the motion in the federal court that entered that judgment.

         3. Make sure the form is typed or neatly written.

         4. You must tell the truth and sign the form. If you make a false statement of a material fact, you may be prosecuted for perjury.

         5. Answer all the questions. You do not need to cite law. You may submit additional pages if necessary. If you do not fill out the form properly, you will be asked to submit additional or correct information. If you want to submit a brief or arguments, you must submit them in a separate memorandum.

         6. If you cannot pay for the costs of this motion (such as costs for an attorney or transcripts), you may ask to proceed in forma pauperis (as a poor person). To do that, you must fill out the last page of this form. Also, you must submit a certificate signed by an officer at the institution where you are confined showing the amount of money that the institution is holding for you.

         7. In this motion, you may challenge the judgment entered by only one court. If you want to challenge a judgment entered by a different judge or division (either in the same district or in a different district), you must file a separate motion.

         8. When you have completed the form, send the original and two copies to the Clerk of the United States District Court at this address:

         9. CAUTION: You must include in this motion all the grounds for relief from the conviction or sentence that you challenge. And you must state the facts that support each ground. If you fail to set forth all the grounds in this motion, you may be barred from presenting additional grounds at a later date.

         10. CAPITAL CASES: If you are under a sentence of death, you are entitled to the assistance of counsel and should request the appointment of counsel.

         MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY

         MOTION

         1. (a) Name and location of court that entered the judgment of conviction you are challenging:

(b) Criminal docket or case number (if you know): 1:04-CR-00363-004(SOM)

2. (a) Date of the judgment of conviction (if you know): February 17, 2006

(b) Date of sentencing: June 6, 2006, Amended Judgment April 19, 2007

3. Length of sentence: 336 months

         4. Nature of crime (all counts):

Count 1: 21 USC 846 Conspiracy to distribute and possess with intent to distribute 50 grams or more of methamphetamine

5. (a) What was your plea? (Check one)

(b) If you entered a guilty plea to one count or indictment, and a not guilty plea to another count or indictment, what did you plead guilty to and what did you plead not guilty to?

6. If you went to trial, what kind of trial did you have? (Check one) Jury [✓] Judge only []

         7. Did you testify at a pretrial hearing, trial, or post-trial hearing? Yes [] No [✓]

         8. Did you appeal from the judgment of conviction? Yes [] No [✓]

         9. If you did appeal, answer the following:

(a) Name of court:
(b) Docket or case number (if you know):
(c) Result:
(d) Date of result (if you know):
(e) Citation to the case (if you know):
(f) Grounds raised:
(g) Did you file a petition for certiorari in the United States Supreme Court? Yes [] No [✓]
If "Yes, " answer the following:
(1) Docket or case number (if you know):
(2) Result:
(3) Date of result (if you know):
(4) Citation to the case (if you know):
(5) Grounds raised:

10. Other than the direct appeals listed above, have you previously filed any other motions, petitions, or applications concerning this judgment of conviction in any court?

         11. If your answer to Question 10 was "Yes, " give the following information:

(a) (1) Name of court: United States District Court of hawaii
(2) Docket or case number (if you know): 1:04-CR-00363-SOM
(3) Date of filing (if you know): 2/17/2016
(4) Nature of the proceeding: Amendment 782 to reduce sentence
(5) Grounds raised:
Amendment 782, 18 USC 3582(c)(2)
(6) Did you receive a hearing where evidence was given on your motion, petition, or application? Yes [] No [✓]
(7) Result: Didn't apply due to Career Offender Designation
(8) Date of result (if you know):
(b) If you filed any second motion, petition, or application, give the same information:
(1) Name of court:
(2) Docket or case number (if you know):
(3) Date of filing (if you know):
(4) Nature of the proceeding:
(5) Grounds raised:
(6) Did you receive a hearing where evidence was given on your motion, petition, or application? Yes [] No []
(7) Result:
(8) Date of result (if you know):
(c) Did you appeal to a federal appellate court having jurisdiction over the action taken on your motion, petition, or application?
(1) First petition: Yes [] No []
(2) Second petition: Yes [] No []
(d) If you did not appeal from the action on any motion, petition, or application, explain briefly why you did not:

12. For this motion, state every ground on which you claim that you are being held in violation of the Constitution, laws, or treaties of the United States. Attach additional pages if you have more than four ...


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