Opinion
CV-20-01421-ROS (MHB) CR-12-00371-PHX-ROS
07-06-2022
Isaac Steven Silversmith, Defendant/Movant, v. United States of America, Plaintiff/Respondent.
REPORT AND RECOMMENDATION
Honorable Michelle H. Bums United States Magistrate Judge
TO THE HONORABLE ROSYLN O. SILVER, U.S. DISTRICT COURT JUDGE:
On July 1, 2020, Movant Isaac Steven Silversmith, an inmate confined in the United States Bureau of Prisons filed a pro se Motion to Vacate, Set Aside or Correct Sentence Under 28 U.S.C. § 2255 (“2255 motion”). (Doc. 1.) The Court denied the 2255 motion with leave to amend, as Movant's pleading was not in the proper format. (Doc. 3.) On August 3, 2020, Movant filed an Amended pro se 2255 Motion. (Doc. 5.) On June 10, 2021, the Court appointed counsel to represent Movant. (Doc. 12.) On September 23, Movant through counsel filed a Second Amended 2255 motion. (Doc. 19.) In Movant's 2255 motions he claims that his conviction for Use of Firearm During a Crime of violence pursuant to 18 U.S.C. § 924(c) is invalid because the predicate crime, second-degree murder in violation of 18 U.S.C. §§ 1153 and 1111 is not a crime of violence. He also claims that his counsel was ineffective in not raising the claim. (Id.)
This is the date that Movant placed his motion in the prison mailing system for mailing. (Doc. 1 at 4.) That is the operative date of filing, although the motion was not docketed until July 17, 2020. See, Huizar v. Cary, 273 F.3d 1220, 1223 (9th Cir. 2001) (applying “prison mailbox rule” in construing filing date).
In his Second Amended 2255 motion, Movant cited as authority United States v. Borden, U.S.;141 S.Ct. 1817 (2021), in which the Supreme Court held that a crime carrying a mens rea of recklessness does not constitute a “violent” felony for purposes of 18 U.S.C. § 924(c)(3)(A) but left open the question of whether a crime carrying a mens rea of extreme recklessness would. Movant also cited as authority United States v. Begay, a case in which a Ninth Circuit three-judge panel majority held that second-degree murder is not a crime of violence. Begay, 934 F.3d 1033 (9th Cir. 2019).
On November 18, 2021, Respondent filed an Unopposed Motion to Stay Proceedings Pending Resolution of Proceedings in United States v. Begay, No. 14-10080. (Doc. 23.) As stated in the motion, on October 27, 2021, the Ninth Circuit Court of Appeals ordered that Begay be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3. (Id.) The three-judge panel opinion in Begay was therefore vacated, thus rendering the question of whether second-degree murder is a crime of violence pending before the en banc Court. The parties agreed that “because Begay concerns the same question presented in Movant's 2255 proceedings,” the matter should be stayed until a decision is rendered. (Id.) The Court granted the motion and stayed the proceedings pending the Begay decision. (Doc. 24.)
United States v. Begay, 15 F.4th 1254 (9th Cir. 2021) (mem).
On May 5, 2022, the Ninth Circuit Court of Appeals issued its en banc decision in Begay and issued its Mandate on May 27, 2022. On May 27, 2022, this Court issued an Order that the parties filed a status report and show cause as to why the 2255 proceedings should not be dismissed in light of the decision. (Doc. 25.) Movant filed a Response on June 21, 2022, in which Movant indicated no opposition to a lifting of the Court's Stay Order and agreed that the Court “may proceed with its decision.” (Doc. 27.) Plaintiff furthermore stated that “[a]dmittedly, the Begay decision would appear to foreclose relief (at least in this Circuit) at this time. However, for the reasons articulated in Circuit Judge Ikuta's dissent, Movant believes the Begay case was wrongly decided, and therefore, wishes to preserve his claim for further appellate review.” (Id.)
The en banc Court held that second-degree murder constitutes a crime of violence pursuant to 18 U.S.C. 924(c)(A)(3). United States v. Begay, 33 F.4th 1081 (9th Cir. 2022).
Because the Ninth Circuit's en banc decision in Begay forecloses relief as to Movant's claims, this Court will recommend that Movant's Second Amended 2255 motion be denied and dismissed with prejudice.
IT IS RECOMMENDED that the Court lift its Stay Order. (Doc. 24.)
IT IS FURTHER RECOMMENDED that Movant's Second Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 19) be DENIED AND DISMISSED WITH PREJICE.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because the dismissal of the Petition is justified as the Petitioner has not demonstrated a substantial showing of the denial of a constitutional right.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed seventeen (17) pages in length. Failure timely to file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure timely to file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule 72, Federal Rules of Civil Procedure.