Opinion
Criminal No. 3:88-111 (DSD).
April 5, 2011
ORDER
This matter is before the court upon the motions to proceed in forma pauperis; to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 and for default judgment by petitioner Sherman Ray Meirovitz. Based on a review of the file, record and proceedings herein, and for the following reasons, the court denies the motions to vacate and for default judgment and grants the motion to proceed in forma pauperis.
BACKGROUND
Meirovitz is a federal prisoner who was sentenced to life imprisonment on January 5, 1990, after a jury convicted him of conspiracy and possession with intent to distribute cocaine. See United States v. Meirovitz, 918 F.2d 1376, 1383 (8th Cir. 1990) (affirming conviction and sentence), cert. denied, 502 U.S. 829 (1991). The sentencing court determined that he qualified as career offender under Guidelines Manual § 4B1.1, due to his July 7, 1983, plea of guilty to manslaughter in the second degree, in violation of Minnesota Statutes § 609.205. Meirovitz filed the present motions for a writ of habeas corpus and to proceed in forma pauperis on November 15, 2010. The court directed the government to respond by January 25, 2011. See ECF No. 71. The government failed to respond, and Meirovitz filed a motion for default judgment. The court now considers the motions.
DISCUSSION
I. Application for a Writ of Habeas Corpus
Meirovitz seeks a writ of habeas corpus under 28 U.S.C. § 2255. A § 2255 application must be made within one year of the later of 1) the date on which the conviction becomes final or 2) the date on which the right asserted is initially recognized by the Supreme Court if made retroactive on collateral review. 28 U.S.C. § 2255(f)(1), (3). Meirovitz's case became final on November 12, 1991, when the Supreme Court denied a writ of certiorari. Meirovitz argues that his predicate conviction for manslaughter in the second degree is not a crime of violence under a newly recognized right declared in Johnson v. United States, 130 S. Ct. 1265 (2010). In Johnson, the Court determined that a violent felony under 18 U.S.C. § 924(e)(1)(B)(i) requires the use of "violent force," that is, "force capable of causing physical pain or injury to another person." 130 S. Ct. at 1271 (citation omitted).
The holding of Johnson, however, is not a new rule. Two years before, in Begay v. United States, the Court held that an offense is a violent felony only if it is involves "purposeful, violent and aggressive conduct." 128 S. Ct. 1581, 1585-86 (2008) (citation and internal quotation marks omitted). As a result, the decision in Johnson is merely an application of the principle recognized in Begay. Therefore, the present § 2255 application was filed more than a year after the Court initially recognized the right asserted, and the application is barred.
Moreover, the definition of a crime of violence under § 924 does not necessarily control § 4B1.1. See United States v. Ross, 613 F.3d 805, 809-10 (8th Cir. 2010). Because the application is time barred, the court does not reach this question — or Meirovitz's argument about offense role — in this case.
II. Default Judgment
III. Certificate of Appealability
55 28 U.S.C. § 2253Slack v. McDaniel529 U.S. 473 483-84Johnson
Meirovitz also seeks to proceed in forma pauperis. No district-court filing fee is required for the present § 2255 application, however, the court addresses the motion based on its grant of a certificate of appealability. The financial information that Meirovitz provided, ECF No. 70, shows Meirovitz to be indigent, and therefore Meirovitz is entitled to proceed in forma pauperis.
CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that:
1. The motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence is [ECF No. 68] is denied;
2. The motion to proceed in forma pauperis [ECF No. 70] is granted;
3. The motion for default judgment [ECF No. 72] is denied; and
4. Pursuant to 28 U.S.C. § 2253, the court issues a certificate of appealability.