Opinion
2:10-CR-600 JCM (VCF)
02-19-2014
UNITED STATES OF AMERICA, Plaintiff, v. JAMES H. HAINES, Defendant.
ORDER
Presently before the court is petitioner James Henderson Haines' motion (doc. # 61) for the court to reconsider its order declining to issue a certificate of appealability (doc. # 58). No response was filed to this motion.
With the instant motion, petitioner requests that the court reconsider its refusal to issue a certificate of appealability regarding the denial of petitioner's motion to vacate pursuant to 28 U.S.C. § 2255. In the underlying motion, petitioner argued that he was denied effective assistance of counsel because, during his plea negotiations, petitioner's attorney believed that petitioner qualified as a career offender under the United States Sentencing Guidelines ("USSG"). Though the government, petitioner's counsel, and the court all agreed that petitioner was a career offender, petitioner asserted that this classification was erroneous because his crime, being a felon in possession of a firearm, was not a "crime of violence."
The court denied both the motion to vacate and the request for a certificate of appealability after finding that it was clear from the text of the guidelines that petitioner did qualify as a career offender. The court observed that while unlawful possession of a firearm by a felon does not generally constitute a crime of violence, it does if the particular firearm was, inter alia, a short-barreled shotgun or machine gun. (Doc. # 58 p. 5) (citing 26 U.S.C. § 5845(a)). Because petitioner's crime involved a machine gun, the court found that it constituted a crime of violence and counted toward petitioner's classification as a career criminal. (Doc. # 58 p. 5).
When reviewing a denial of a request for relief pursuant to 28 U.S.C. § 2255, "the district court should consider any new evidence, change in law, clear error, or manifest injustice." United States v. Cobar, 2012 WL 3882200 *1 (D. Nev. 2012) (citing Culler v. Board of Prison Terms, 405 Fed. Appx. 263, 264 (9th Cir. 2010)).
Petitioner now points to United States v. Miller, 721 F.3d 435 (7th Cir. 2013), claiming that this case supports the assertion that mere possession of a machine gun does not constitute a crime of violence under the sentencing guidelines. While petitioner is correct that this case considered whether the possession of a sawed-off shotgun constituted a crime of violence, the Seventh Circuit specifically stated that this question was in reference to the Armed Career Criminals Act ("ACCA"), not the USSG. See Miller 721 F.3d at 441-42. In fact, the Miller court observed that the USSG directly state that possession of a sawed-off shotgun does constitute a crime of violence. See id. at 441.
Therefore, the decision referred to by petitioner relates to a statutory scheme that is entirely separate from that which the court considered in issuing his sentence. Furthermore, even if this decision did represent a change in the law relating to petitioner's sentence, his motion to vacate would still fail to raise a substantial showing that he was denied effective assistance of counsel. As such, the court finds that United States v. Miller does not represent a change in the relevant law, and petitioner's motion to reconsider will be denied. . . . . . . . . . . . .
Accordingly,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that petitioner James Henderson Haines' motion for the court to reconsider its order declining to issue a certificate of appealability (doc. # 61) be, and the same hereby is, DENIED.
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UNITED STATES DISTRICT JUDGE