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United States v. Slattery

United States District Court, D. Oregon

October 13, 2017

UNITED STATES OF AMERICA,
v.
EDWARD THOMAS SLATTERY, Defendant.

          Billy J. Williams, United States Attorney, and Jane Shoemaker, Assistant United States Attorney, United States Attorney's Office, District of Oregon, Attorneys for United States of America.

          Stephen R. Sady, Chief Deputy Federal Defender, and Elizabeth G. Daily, Assistant Federal Public Defender, Office of the Federal Public Defender, Attorneys for defendant.

          OPINION AND ORDER

          Michael H. Simon United States District Judge.

         Before the Court is defendant Edward Thomas Slattery's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. ECF 39.[1] For the following reasons, the motion is denied.

         STANDARDS

         Section 2255 permits a prisoner in custody under sentence to move the court that imposed the sentence to vacate, set aside, or correct the sentence on the ground that:

[T]he sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack . . . .

28 U.S.C. § 2255(a).

         Under Section 2255, “a district court must grant a hearing to determine the validity of a petition brought under that section ‘[u]nless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief.'” United States v. Baylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (emphasis in original) (quoting 28 U.S.C. § 2255). A motion pursuant to § 2255 must be filed within one year from the date on which a petitioner's conviction becomes final, unless an exception applies. Id. § 2255(f)(1). One exception provides that a motion is timely if (1) it “assert[s] . . . [a] right . . . newly recognized by the Supreme Court, ” id. § 2255(f)(3), (2) it is filed within one year from “the date on which the right asserted was initially recognized by the Supreme Court, ” id. § 2255(f)(3), and (3) the Supreme Court or controlling Court of Appeals has declared the right retroactively applicable on collateral review, Dodd v. United States, 545 U.S. 353, 358-59 (2005). Only the Supreme Court may “recognize” a new right under § 2255(f)(3). Dodd, 545 U.S. at 357-59. In order to show that his or her claim relies on a new rule of constitutional law, a movant must show that “(1) he or she was sentenced in violation of the Constitution and that (2) the particular constitutional rule that was violated is ‘new, ' [and] was ‘previously unavailable'” United States v. Geozos, 870 F.3d 890, 895 (9th Cir. 2017).

         BACKGROUND

         A. Defendant's Conviction and Sentencing

         In 2004, while serving a state prison sentence, Defendant walked away from his work crew assignment. ECF 54 at 8 (Presentence Report, filed under seal). He proceeded to steal clothing and other items from a nearby residence and committed a robbery at a credit union. Id. He was apprehended shortly after the robbery. Id. While in custody, Defendant conveyed numerous threats by phone and mail. Id.

         Defendant had three federal criminal cases pending against him (3:07-cr-362-SI, 6:07-cr-60008-SI, and 3:07-cr-60009-SI). On September 17, 2007, he resolved all three cases by pleading guilty to one count of unarmed bank robbery, in violation of 18 U.S.C. § 2113(a), and eight counts of threats to various officials, including the President, Queen Elizabeth II, and a federal judge, in violation of 18 U.S.C. 871(a), 876(c), 15(a)(1)(B), 878(a) and 1038(a)(1). ECF 23. Under the terms of the plea agreement, the parties stipulated that Defendant qualified as a career offender under the United States Sentencing Guidelines (“Guidelines”), which produced a combined Guidelines range of 151-188 months under offense level 32 and criminal history category VI for all of the offenses. Id. at 14. Defendant further agreed not to argue for a below-guideline sentence. Id.

         Defendant's presentence report also recommended that he be sentenced as a career offender. ECF 54 at 18. This recommendation was based on the career offender provision of the Guidelines, which increases a defendant's offense level if the current offense is a “crime of violence” or a “controlled substance offense” and the defendant has already been convicted of committing two or more such offenses. Guidelines § 4B1.1. Defendant had three prior convictions that the presentence report determined to be “crimes of violence, ” and thus career offender predicate offenses: two prior Oregon convictions for Burglary I and one prior federal conviction for threatening the President. ECF 54 at 18. Consistent with the plea agreement, and including the career offender enhancement, the presentence report recommended a Guidelines range of 151-188 ...


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