United States District Court, D. Minnesota
Jeffrey S. Paulsen, on behalf of Plaintiff-Respondent
Alvin Myers, Pro Se Defendant-Petitioner
RICHARD NELSON, District Judge
matter is before the undersigned United States District Judge
on four motions filed by Defendant-Petitioner Philip Alvin
Myers: (1) Pro Se Motion to Vacate Pursuant to 28 U.S.C.
§ 2255 [Doc. No. 76]; (2) Pro Se Amended Motion to
Vacate Pursuant to 28 U.S.C. § 2255 [Doc. No. 78]; (3)
Pro Se Motion for Order of Default [Doc. No. 80]; and (3) Pro
Se Motion to Supplement in Opposition to Government's
Response [Doc. No. 82]. For the reasons set forth below,
Myers' motions are denied and denied as moot.
January 2011, the Government charged Myers with the following
crimes: (1) interference with commerce by robbery, in
violation of the Hobbs Act, 18 U.S.C. § 1951; (2)
possession of a firearm in furtherance of a crime of
violence, in violation of 18 U.S.C. § 924(c)(1)(A); and
(3) being a felon in possession of a firearm, in violation of
18 U.S.C. §§ 922(g)(1) and 924(a)(2). The
Indictment alleged that on or about January 5, 2011, Myers, a
convicted felon, robbed a gas station employee of $100 in
cash from the cash register till and $70 in cash from the
employee's wallet, while displaying a handgun.
(Indictment, Counts 1-3 [Doc. No. 1].) Also, the Indictment
called for the forfeiture of any handguns used in the alleged
violations, including a Sig Sauer P229 .40 Caliber
semiautomatic handgun, serial number AF11775. (Id.
proceedings before this Court, Defendant was represented by
appointed counsel, United States Federal Defender Reynaldo A.
Aligada. On March 21, 2011, Mr. Aligada filed a motion for a
psychiatric exam to determine Myer's competency, [Doc.
No. 22], on his client's behalf. This Court determined
that Myers was unable to understand the nature and
consequences of the proceedings against him and committed him
to the custody of the Attorney General for hospitalization
and treatment. (Order of 7/26/11 [Doc. No. 28].) This
commitment was continued until Myers' competency was
adequately restored, after which, in January 2015,
proceedings in this action resumed. (See 1/14/15
Status Conf. Minutes [Doc. No. 38].)
April 2015, Myers entered a change of plea [Doc. No. 45],
agreeing to the factual basis of the underlying charges.
Specifically, he agreed that he had robbed a gas station
employee at gunpoint and fled in a stolen vehicle, which he
later abandoned following a high speed chase. (See
Govt's Sentencing Position at 2 [Doc. No. 55].) He was
apprehended with the money in a backpack that he was carrying
and officers recovered the handgun near the stolen vehicle.
(See Gov't's Mot. for Prelim. Forfeiture at
2-3 [Doc. No. 47].) In addition, as part of the parties'
plea agreement, Myers and counsel for the Government agreed
that the Government would move for the dismissal of Counts 2
and 3 at the time of sentencing. (See
Gov't's Sentencing Position at 1.) In exchange, and
in light of the parties' conclusion that Myers was a
career offender under the Sentencing Guidelines in light of
two prior second degree burglary convictions, he agreed to no
downward departure or downward variance from the applicable
Sentencing Guidelines range of 151 to 188 months. (See
id.; Def.'s Supp'l Sentencing Position at 1
[Doc. No. 64].) Myers further agreed to forfeit all right,
title, and interest in the firearm recovered by law
enforcement upon his arrest. (See Gov't's
Mot. for Prelim. Forfeiture at 2.)
to Defendant-Petitioner's scheduled sentencing, the
United States Sentencing Commission announced an upcoming
change to U.S.S.G. § 4B1.2, Guideline Amendment 798,
effective August 1, 2016, that would eliminate burglary as a
“crime of violence” offense under the career
offender guidelines. (Def.'s Supp'l Sentencing
Position at 2.) This was the only type of career offender
predicate offense in Myers' criminal history.
(Id.) In light of the upcoming change, Mr. Aligada
conferred with the Government's counsel, who agreed that
a sentence outside of the 151 to 188 month range was
appropriate. (Id. at 2-3.) The parties jointly
recommended a sentence of 144 months. (Id. at 3.)
April 13, 2016, this Court sentenced Defendant-Petitioner to
144 months for robbery under the Hobbs Act, as set forth in
Count 1 of the Indictment. (Sentencing J. at 2 [Doc. No.
67].) Counts 2 and 3 were dismissed upon the Government's
motion. (Id. at 1.)
filed his original § 2255 motion on November 14, 2016
[Doc. No. 76]. On November 29, 2016, he filed an amended
§ 2255 motion [Doc. No. 78]. He subsequently filed a
motion for default [Doc. No. 80] and a motion to file a
response in opposition to the Government's response [Doc.
No. 82]. The Government objects to Myers' § 2255 and
default motions [Doc. Nos. 79 & 81].