Opinion
No. CV-16-00725-TUC-RCC No. CR-12-1025-TUC-RCC
08-07-2019
Isabel Perez-Arellanez, Petitioner, v. United States of America, Respondent.
ORDER
Pending before the Court is Petitioner's Amended § 2255 Motion to Vacate, Set Aside, or Correct Sentence. (Doc. 5.) Petitioner asked the Court to vacate his convictions on four counts of possession of a firearm during a crime of violence under 18 U.S.C. § 924(c), claiming these convictions were unconstitutional after Johnson v. United States, 135 S.Ct. 2551 (2015). Id. On July 24, 2017, the Court granted Respondent's Motion to Stay this case pending Ninth Circuit's determination in United States v. Begay, No. 14-10080 (9th Cir. Feb. 20, 2014), and the Supreme Court's decision in Sessions v. Dimaya, 138 S.Ct. 1204 (2018). (Doc. 12.) The Dimaya opinion was subsequently released, but the Ninth Circuit deferred its ruling in Begay pending the outcome of United States v. Davis, 138 S.Ct. 2319 (Jun. 24, 2019). Once the Supreme Court decided Davis and found the residual clause of § 924(c) unconstitutional, this Court ordered Respondent to answer. (Doc. 14.)
Unless otherwise noted, citations to the docket refer to Petitioner's civil matter, CV-16-00725-TUC-RCC. --------
Given the current caselaw, Respondent admits that Petitioner's convictions under § 924(c)(3)(A) are unconstitutional. (Doc. 17.) Respondent now asks the Court to grant the Motion to Vacate as to his convictions under § 924(c). Id.
• Amended Complaint
An amended complaint supersedes the original. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat the original complaint as nonexistent. Ferdik, 963 F.2d at 1262.
However, in this instance, counsel was appointed under General Order 16-07 (superseded by General Order 16-20) to screen Petitioner's case for viable claims under Johnson. (Doc. 3.) Counsel filed an Amended Motion, stating Petitioner "now files this amended petition concerning his claim under Johnson." (Doc. 5 at 3.) Because Petitioner was appointed counsel pursuant to General Order, and based on counsel's statement and Petitioner's subsequent Motion to Amend (Doc. 7), it appears that Petitioner only intended to amend his petition as to his Johnson claim. Therefore, the Court will require an answer from the government addressing Petitioner's remaining claim - Ground One, asserting ineffective assistance of trial counsel.
Accordingly, IT IS ORDERED:
1. Petitioner's Amended Motion to Vacate, Set Aside or Sentence Under 28 U.S.C. § 2255 is GRANTED. (Doc. 5 in CV-16-00725-TUC-RCC.)
2. Petitioner's original motion is DENIED IN PART. (Doc. 1 in CV-16-00725-TUC-RCC; Doc. 266 in CR-12-01025-RCC-LAB-1.) Petitioner's Grounds Two and Three are DENIED AS MOOT.
3. Within 30 days of the date of this Order, the government must respond to Ground One of the original § 2255 motion (Doc. 1 in CV-16-00725-TUC-RCC; Doc. 266 in CR-12-01025-RCC-LAB-1). Mr. Perez-Arellanez may file a reply, pro se, to the government's response.
4. Petitioner's § 924(c) sentences in CR-12-1025-TUC-RCC are VACATED.
5. U.S. Probation Office shall (1) generate Mr. Perez-Arellanez's Inmate Profile or SENTRY Report, and (2) file an addendum to Mr. Perez-Arellanez's Presentence Report that contains Mr. Arellanez's amended Guidelines range and a summary of the Inmate Profile.
6. Probation shall be prepared to meet and confer about the Inmate Profile with Mr. Perez-Arellanez's counsel and the government within 30 days of the date of this Order.
7. Either party may, within 30 days after meeting and conferring with Probation, request that the Probation Office provide Mr. Perez-Arellanez's Progress Report and Disciplinary Records from the Bureau of Prisons. If either party so requests, Probation shall serve the Progress Report and Disciplinary Records on both parties and the Court within 30 days after receiving the request.
8. A hearing is set for the modification of Petitioner's sentence on Tuesday, November 5, 2019 at 10:00 a.m. in front of the Honorable Raner C. Collins in Courtroom 5D, 405 W. Congress St., Tucson, Arizona, 85705.
9. Counsel for the government shall insure that Mr. Perez-Arellanez is present for the scheduled hearing. Counsel may submit to the Court any motions or proposed orders that will facilitate Mr. Perez-Arellanez's presence at the hearing.
10. Petitioner is ordered detained pending the hearing.
Dated this 7th day of August, 2019.
/s/_________
Honorable Raner C. Collins
Senior United States District Judge