Opinion
CRIMINAL NO. 96-388-2; CIVIL NO. 03-5785
December 17, 2003
MEMORANDUM
Petitioner's § 2255 petition is arguably time-barred. The original sentence imposed on July 24, 1997 was subject to an appeal. The Third Circuit affirmed the convictions but vacated the restitution order for re-sentencing.
The re-sentencing took place on June 24, 1999 and the transcript reflecting the re-sentencing was filed on July 2, 1999 in the Clerk's office. No written judgment order was ever filed of record. On October 20, 2003, petitioner filed the 2255 motion now before the court. The government argues that the filing of the written transcript would serve as the written judgment of the court, and thus, petitioner's motion is untimely under 28 U.S.C. § 2255.
I agree that it is untimely. Moreover, U.S. v. Colvin, 204 F.3d 1221 (9th Cir. 2000) cited by petitioner involves a different factual predicate and thus is not applicable to this case.
On the merits, petitioner has no grounds for relief in any event. His petition is based on the premise that the court erroneously imposed consecutive sentences citing Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978) for the holding that a prosecution growing out of a single transaction of bank robbery with firearms, prevents the defendant from being sentenced under § 2113(d) and 924(c).
In United States v. Lockridge, 947 F.2d 951, 1991 WL 229017 (9th Cir. (Cal.)) the court explained the congressional reaction to Simpson as follows:
Congress took such corrective action when it amended section 924(c) to clarify its intent in light of the Supreme Court's interpretation of section 924(c) in Simpson and Busic. The legislative history of § 924(c) states that Simpson and Busic have "negated the section's use in cases involving statutes, such as the bank robbery statute . . . which [has its] own enhanced, but not mandatory, punishment provisions in situations where the offense is committed with a dangerous weapon. These are precisely the type of extremely dangerous offenses for which a mandatory punishment for the use of firearm is the most appropriate." Continuing Appropriations, 1985-Comprehensive Crime Control Act of 1984, S.Rep. No. 98-225, 98th Cong.2d Sess. 312 (1983), reprinted 1984 U.S.C.C.A.N. 3182, 3490. The legislative history sets forth the following example of a proper application of the amended statute: "[A] person convicted of armed bank robbery in violation of section 2113(a) and (d) and of using a gun in its commission . . . would have to serve five years . . . before his sentence for the conviction under section 2113(a) and (d) could start to run." Id. at 3492.
In United States v. Blacker, 802 F.2d 1102 (9th Cir. 1986), we held that section 924(c) was amended to ensure that all persons who commit Federal crimes of violence, including those crimes set forth in statutes which already provide for enhanced sentences for their commission with a dangerous weapon, receive a mandatory sentence, without the possibility of the sentence being made to run concurrently with that for the underlying offense.
The court finds the above to be dispositive of this case.
The petitioner has failed to make a substantial showing of the denial of any constitutional right, and that will be reflected in the order entered hereafter.
ORDER
AND NOW, this 17th day of December 2003, it is hereby ORDERED that petitioner's habeas corpus petition under 28 U.S.C. § 2255 is DENIED.No certificate of appealability will issue.