United States v. Harden

          ORDER DENYING DEFENDANT'S MOTION FOR RECONSIDERATION

          William J. Martínez United States District Judge

         This matter is before the Court on pro se Defendant Michael Darryl Harden's “Motion Seeking Reconsideration of Post-Conviction Judgment” (“the Motion”) in which Mr. Harden asks this Court to reconsider the denial of his previously-filed Motion to Vacate (ECF No. 63) under 28 U.S.C. § 2255. (ECF No. 69.) As directed by the Court, the Government filed a response to the Motion (ECF No. 77) and Mr. Harden used the opportunity provided by the Court to submit a reply (ECF No. 79).

         I. BACKGROUND

         Mr. Harden was charged with two counts of bank robbery under 18 U.S.C. § 2113(a) (“Counts One and Two”) and with use of a firearm in furtherance of a crime of violence under 18 U.S.C. § 924(c)(1)(A)(ii) (“Count Three”). (ECF No. 14.) Mr. Harden entered a guilty plea to Count Three of the Indictment, and the Government dismissed Counts One and Two. (ECF Nos. 42; 50; 55.) On May 30, 2017, U.S. District Court Senior Judge Wiley Y. Daniel sentenced Mr. Harden to a term of imprisonment of 84 months. (ECF Nos. 56; 57.) Mr. Harden did not appeal his conviction by guilty plea or the sentence imposed on him.

         Mr. Harden filed a § 2255 Motion to Vacate on the grounds that he was sentenced under 28 U.S.C. § 924(c)(3)(B), the “residual risk of force” clause, which the Tenth Circuit found to be unconstitutional in 2018. (ECF No. 63.) See United States v. Salas, 889 F.3d 681 (10th Cir. 2018).

         Judge Daniel denied the § 2255 Motion to Vacate on the grounds that Mr. Harden waived his right to appeal or collaterally challenge his conviction and the sentence imposed; that Mr. Harden did not argue ineffective assistance of counsel or prosecutorial misconduct; and that Mr. Harden was not sentenced under the portion of § 924(c) that the Tenth Circuit had found to be unconstitutional. (ECF No. 68.)

         On May 13, 2019, Mr. Harden filed the instant Motion arguing that the Court misapprehended the controlling law and failed to address certain claims presented in his § 2255 Motion to Vacate, focusing on Judge Daniel's conclusion that Mr. Harden was not sentenced under the unconstitutional portion of § 924(c). (ECF No. 69 at 3.) Two days later, this matter was drawn to the undersigned upon Judge Daniel's passing. (ECF No. 74.)

         II. ANALYSIS

         In a criminal case,

[a] motion to reconsider may be granted when the court has misapprehended the facts, a party's position, or the law. Specific grounds include: (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice. A motion to reconsider should not be used to revisit issues already addressed or advance arguments that could have been raised earlier.

United States v. Christy, 739 F.3d 534, 539 (10th Cir. 2014) (internal quotation marks and citations omitted).

         The Court must construe the Motion liberally because Mr. Harden is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court cannot be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.

         Upon review of the Motion and the entire file, the Court concludes that Mr. Harden fails to demonstrate that any of the grounds justifying reconsideration exist in his case. As discussed below, the prior Order denying the § 2255 Motion to Vacate did not misapprehend Mr. Harden's position that he was sentenced under the § 924(c) clause later found unconstitutionally vague. The Court rejects the Mr. Harden's contention that he was sentenced under that provision, and does not disturb its prior ruling that Mr. Harden was sentenced under § 924(c)(3)(A). As a result, Mr. Harden's appellate waiver fully applies and controls.

         Mr. Harden's plea agreement contains waivers of his right to appeal and collaterally attack his conviction and sentence. (ECF No. 42 at 2-3.) Among other things, his collateral challenge waiver does not, however, prevent him from seeking relief otherwise available if he “should receive the benefit of an explicitly retroactive changing in the sentencing guidelines or sentencing statute.” (Id. at 3.) Mr. Harden argues that he was sentenced under the residual risk of force clause of § 924(c). The Tenth Circuit in Salas declared the residual risk of force clause of §924(c) unconstitutional after Mr. Harden was sentenced, but before he filed his § 2255 Motion to Vacate. See Salas, 889 F.3d 681. ...