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United States v. Golden

United States District Court, W.D. Arkansas, Hot Springs Division

May 16, 2018

UNITED STATES OF AMERICA RESPONDENT
v.
MICHAEL SHANE GOLDEN MOVANT

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HON. BARRY A. BRYANT U.S. MAGISTRATE JUDGE.

         Movant MICHAEL SHANE GOLDEN (“GOLDEN”), who is proceeding pro se, filed a Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence on May 14, 2018. ECF No. 43. The Motion was referred for findings of fact, conclusions of law, and recommendations for the disposition of the case. The Court has reviewed the Motion and the record in this case. Based upon that review, the Court recommends this Motion be DENIED as premature.

         1. Procedural Background:

         On January 13, 2017, GOLDEN entered a plea of guilty to a charge of violation of 18 U.S.C. § 922(g)(1), felon in possession of a firearm. ECF Nos. 18, 19. On September 12, 2017, GOLDEN was sentenced to sixty-six (66) months imprisonment. ECF No. 29. On September 21, 2017, he filed a Motion to Amend or Correct Judgment, requesting the Judgment be amended to:

reduce his federal sentence for the time period from February, 2017 to the date the amended Judgment is entered, and to run his federal sentence concurrently, beginning on the date the amended Judgment is entered, with the parole revocation sentence for the Arkansas case in Paragraph 76 of the final PSR . . .

ECF No. 31. The next day, on September 22, 2017, he filed a Notice of Appeal. ECF Nos. 32, 35. On January 18, 2018, the United States Court of Appeals for the Eighth Circuit entered its order holding the appeal in abeyance for a “limited remand” for the purpose of allowing the District Court to rule on the Motion to Amend. ECF No. 41. The Motion to Amend was denied on January 23, 2018. ECF No. 42.

         GOLDEN's appointed Counsel, then filed an Anders brief with the Eighth Circuit and moved to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). GOLDEN was granted permission to file a pro se supplemental brief raising any additional issues he wishes the court to consider. He did so on March 13, 2018. The remainder of the Eighth Circuit briefing schedule has been held in abeyance pending that Court's review of the Anders brief pursuant to Penson v. Ohio, 488 U.S. 75 (1988). See United States v. Golden, No. 17-3081 (8th Cir.). This appeal is pending.

         2. Instant Motion:

         In the instant Motion GOLDEN GOLDEN makes three claims for relief:

a. Sessions v. Dimaya, ___U.S.___, 138 S.Ct. 1204 (2018) holds the “residual clause is a standard to determine length of sentence as well as severity of a crime.”
b. His trial counsel promised him a sentence of fifty-seven (57) months and he was actually sentenced to sixty-six (66) months imprisonment.
c. His trial counsel assured him the trial Judge would “award me my time credit as sentencing.”

ECF No. 43, p. 4.

         3. ...


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