Opinion
No. CIV-08-0694 LH/WPL, CR-04-1475 LH.
June 1, 2009
MEMORANDUM OPINION AND ORDER
This matter is before the Court for consideration of Defendant's post-judgment Motion For A New Trial Based On Newly Discovered Evidence (CV Doc. 1; CR Doc. 65) filed July 24, 2008. In Defendant's response (CV Doc. 7; CR Doc. 68) to an earlier order, he consented to the Court's recharacterization of his motion under 28 U.S.C. § 2255. The Court thus construes the motion under § 2255 and will dismiss the motion.
Defendant entered into a conditional plea agreement on an indictment for being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1), 924(e)(1). The Court sentenced him to 180 months' imprisonment. The Court of Appeals for the Tenth Circuit affirmed Defendant's conviction, see United States v. Valenzuela, 231 F. App'x 785, 789 (10th Cir. 2007), and the Supreme Court denied his petition for writ of certiorari, see Valenzuela v. United States, No. 07-5303, 128 S. Ct. 254 (Oct. 1, 2007) (mem.).
In his § 2255 motion, Defendant asserts that his conviction has been invalidated by the Supreme Court's decision in District of Columbia v. Heller, 128 S. Ct. 2783 (2008). As recently summarized by a district court, the Supreme Court in Heller "found that the Second Amendment conferred an individual right to keep and bear arms. . . . [a]lthough the Court stated that nothing in the opinion was meant `to cast doubt on longstanding prohibitions on the possession of firearms by felons.'" United States v. Radencich, No. 3:08-CR-00048(01) RM, 2009 WL 127648, at *2 (N.D. Ind. Jan. 20, 2009) (quoting Heller, 128 S. Ct. at 2799, 2816-17). The court in Radencich collected post- Heller decisions and found unanimous support for its ruling. See Radencich, 2009 WL 127648, at *2; and see Triplett v. Roy, No. 08-40904, 2009 WL 1154892, at *1 (5th Cir. Apr. 30, 2009).
Furthermore, as recently stated by another district court, " Heller does not establish an intervening change of law retroactively applicable to cases on collateral review." United States v. Willaman, Crim. No. 04-28 Erie; Civil Action No. 08-283 Erie, 2009 WL 578556, at *4 (W.D. Pa. Mar. 5, 2009). The Heller decision did not invalidate Defendant's conviction, and he is not entitled to relief under § 2255. See 28 U.S.C. § 2255 R.4. The Court will dismiss the motion.
IT IS THEREFORE ORDERED that Defendant's Motion For A New Trial Based On Newly Discovered Evidence (CV Doc. 1; CR Doc. 65) filed July 24, 2008, recharacterized and construed herein as a motion to vacate, set aside, or correct sentence under § 2255, is DISMISSED with prejudice; and judgment will be entered.