Morrison v. USA, No. 3:2016cv01517 - Document 6 (S.D. Cal. 2019)
Court Description: ORDER Granting Petition to Vacate under 28 USC 2255. Signed by Judge Dana M. Sabraw on 6/12/2019.(aef) (sjt).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 THOMAS JEFFREY MORRISON, 11 Petitioner, 12 13 14 Criminal Case No. 95-cr-0708 DMS Civil Case No. 16-cv-1517 DMS ORDER GRANTING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255 v. UNITED STATES OF AMERICA, Respondent. 15 16 Pending before the Court on remand is Petitioner Thomas Jeffrey Morrison’s 17 Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255. 18 Following the appeal mandate hearing, Respondent United States of America 19 (“Government”) filed a supplemental response, and Petitioner filed a supplemental 20 reply. For the reasons set forth below, the Court grants Petitioner’s motion. 21 I. 22 BACKGROUND 23 On May 17, 1995, a grand jury charged Petitioner with two counts of federal 24 bank robbery in violation of 18 U.S.C. § 2113(a). (SER 1–2.) Petitioner pled guilty 25 to both counts. (Pet’r’s Mot. at 3; Resp’t’s Opp’n at 2.) 26 On June 5, 1995, the Government filed an information notifying Petitioner 27 that it intended to seek a life sentence pursuant to the federal three-strikes law, 28 codified at 18 U.S.C. § 3559(c)(1)(A)(i). (SER 3–4.) Under that law, the district –1– 95-cr-0708 1 judge must sentence to life in prison any defendant who (1) is convicted in federal 2 court of a “serious violent felony”; and (2) has two or more prior “serious violent 3 felony” convictions in federal or state courts. 18 U.S.C. § 3559(c)(1)(A)(i); U.S. v. 4 Morrison, 113 F.3d 1020, 1020 (9th Cir. 1997). 5 Petitioner’s two prior “serious violent felony” offenses were based on his 6 1979 robbery conviction under California Penal Code § 211, for which he received 7 a three-year prison term, and 1990 robbery conviction under California Penal Code 8 §§ 211 and 12022.5, for which he was sentenced to eight years in prison. (Id.) As 9 to his 1990 conviction, Petitioner pled guilty to a violation of § 211 and admitted to 10 a sentence enhancement under § 12022.5 for use of firearm. (SER 8–9; 21–32.) He 11 was sentenced to five years on the robbery and three years consecutive on the 12 enhancement, for a total term of eight years. (SER 59–60.) 13 On October 6, 1995, Petitioner moved to dismiss the three-strikes sentencing 14 enhancement. He argued, in part, that his 1990 robbery offense did not qualify for 15 enhancement because he did not use or threaten to use a firearm or other dangerous 16 weapon. (SER 6.) 17 On March 15, 1996, District Judge Irma E. Gonzales held a sentencing 18 hearing. At the hearing, Judge Gonzales found that Petitioner’s 1979 robbery 19 conviction constitutes a “predicate offense” under § 3559(c)(3). (SER 187.) As to 20 Petitioner’s 1990 robbery conviction, Judge Gonzales determined that Petitioner 21 failed to meet his burden of showing that he did not use a firearm at the time he 22 committed his offense, while the Government established the 1990 robbery was “a 23 predicate offense which qualifies under the three-strikes law.” (SER 187, 203–210.) 24 Without specifying which clause she was relying on, Judge Gonzales held that the 25 1979 and 1990 robbery convictions “are both serious violent felonies which qualify 26 under the three-strikes law[.]” (SER 211.) Accordingly, Petitioner was sentenced 27 to life imprisonment pursuant to the three-strikes enhancement. On March 22, 1996, 28 Petitioner appealed his conviction, which the Ninth Circuit affirmed. See U.S. v. –2– 95-cr-0708 1 Morrison, 113 F.3d 1020 (9th Cir. 1997). 2 Eighteen years later, the Supreme Court issued its decision in Johnson v. 3 United States, 135 S. Ct. 2551 (2015), which invalidated the residual clause of the 4 Armed Career Criminal Act (“ACCA”) as unconstitutionally vague. Within one 5 year after Johnson was decided, Petitioner filed the instant motion on grounds that 6 at least one of his prior robbery convictions no longer qualifies as a “serious violent 7 felony” under a similar residual clause in the three-strikes law. This Court found the 8 residual clause in the three-strikes law to be distinguishable from Johnson, and 9 determined that it was not unconstitutionally vague. Petitioner appealed to the Ninth 10 Circuit. 11 During the pendency of the appeal, the Supreme Court issued its decision in 12 Sessions v. Dimaya, 138 S. Ct. 1204 (2018). In Dimaya, the Supreme Court applied 13 Johnson, and struck down as unconstitutionally vague the residual clause in 14 18 U.S.C. § 16(b)—which is “materially indistinguishable” from the residual clause 15 in the three-strikes law. See United States v. Morrison, 751 Fed. Appx. 1026, 1027 16 (9th Cir. 2019). Thus, the Ninth Circuit remanded for the Court to reconsider “in 17 light of that new decision.” See id. at 1027. 18 II. 19 LEGAL STANDARD 20 A. 28 U.S.C. § 2255 21 Pursuant to § 2255, a prisoner in custody may move the federal court that 22 imposed a sentence upon him to vacate, set aside, or correct that sentence on the 23 ground that: 26 the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack[.] 27 28. U.S.C. § 2255(a). If the court determines that relief is warranted under § 2255, 28 it must “vacate and set the judgment aside” and “discharge the prisoner or resentence 24 25 –3– 95-cr-0708 1 him or grant a new trial or correct the sentence as may appear appropriate.” Id. 2 § 2255(b). 3 B. Johnson and Welch 4 In Johnson v. U.S., 135 S. Ct. 2551, 2555 (2015), the Supreme Court found 5 the residual clause of the Armed Career Criminal Act (“ACCA”) to be 6 unconstitutionally vague. The ACCA defined “violent felony” as: h 7 8 9 10 any crime punishable by imprisonment for a term exceeding one year ... that— (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or 12 (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.] 13 Id. at 2555–56 (quoting 18 U.S.C. § 924(e)(2)(B)) (emphasis in original). The 14 italicized portion of the ACCA has come to be known as the residual clause. Id. 11 15 In finding the residual clause to be unconstitutional, the Supreme Court first 16 explained the clause left “grave uncertainty about how to estimate the risk posed by 17 a crime” because “[i]t ties the judicial assessment of risk to a judicially imagined 18 ‘ordinary case’ of a crime, not to real-world facts or statutory elements.” Johnson, 19 135 S. Ct. at 2557. The Court also reasoned that the clause left “uncertainty about 20 how much risk it takes for a crime to qualify as a violent felony” because it forced 21 courts to determine potential risk “in light of the four enumerated crimes—burglary, 22 arson, extortion, and crimes involving the use of explosives[, which] are ‘far from 23 clear in respect to the degree of risk each poses.’” Id. at 2558 (quoting Begay v. 24 United States, 553 U.S. 137, 143 (2008)). Accordingly, the Court concluded 25 “imposing an increased sentence under the residual clause of the [ACCA] violates 26 the Constitution’s guarantee of due process.” Id. at 2563. Several years later, the 27 Supreme Court held that Johnson applies retroactively to cases on collateral review 28 in Welch v. U.S., 136 S. Ct. 1257 (2016). –4– 95-cr-0708 1 C. Dimaya 2 In Sessions v. Dimaya, 138 S.Ct. 1204 (2018), the Supreme Court examined 3 a similar vagueness issue in the Immigration and Nationality Act (“INA”). The INA 4 makes deportable any alien convicted of an “aggravated felony” after entering the 5 United States and defines “aggravated felony” to include many offenses and types 6 of offenses. Among the items on the list of offenses is “a crime of violence,” as 7 defined by 18 U.S.C. § 16. That provision defines “crime of violence” to mean: 8 (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or 9 10 12 (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. 13 18 U.S.C. § 16 (emphasis added). Courts refer to the italicized portion as the residual 14 clause. 11 15 Despite minor textual differences from the residual clause in Johnson, the 16 Supreme Court held that the residual clause in § 16 violated the “promise” of due 17 process “in just the same way.” 138 S. Ct. at 1215. 18 D. Three-Strikes Law 19 The federal three-strikes law “enhances the sentence of a defendant who is 20 convicted of a serious violent felony when the defendant previously was convicted 21 of at least two other serious violent felonies.” United States v. Kaluna, 192 F.3d 22 1188, 1195 (9th Cir. 1999); 18 U.S.C. § 3559(c)(1)(A)(i). Section 3559(c)(2)(F) 23 defines a “serious violent felony” as: 24 25 26 27 28 (i) a Federal or State offense, by whatever designation and wherever committed, consisting of ... robbery (as described in section 2111, 2113, or 2118) ... and (ii) any other offense punishable by a maximum term of imprisonment of 10 years or more that has as an element the use, attempted use, or threatened use of physical force against the person of another or that, –5– 95-cr-0708 by its nature, involves a substantial risk that physical force against the person of another may be used in the course of committing the offense[.] 1 2 3 4 5 6 7 18 U.S.C. § 3559(c)(2)(F) (emphasis added). Courts generally refer to the first clause as the “enumerated offense clause,” see 18 U.S.C. § 3559(c)(2)(F)(i), the first part of the disjunctive statement in the second clause as the “elements clause,” see 18 U.S.C. § 3559(c)(2)(F)(ii), and the second part of the disjunctive statement as the “residual clause.” See id. 8 III. 9 DISCUSSION 10 Petitioner contends his 1990 robbery conviction under California Penal Code 11 § 211 was categorized as a “serious violent felony” based on the vague residual 12 clause in the three-strikes law.1 As such, Petitioner claims he no longer has two or 13 more predicate “serious violent felony” offenses required for the three-strikes 14 enhancement. The Government no longer disputes the residual clause in the three- 15 strikes law is unconstitutionally vague under Dimaya. (See Resp’t’s Suppl. Opp’n 16 at 1–2.) Instead, it renews its alternative arguments that (1) Petitioner’s § 2255 17 motion is time-barred because his sentence did not implicate the residual clause; and 18 (2) Petitioner procedurally defaulted his claims by failing to raise his vagueness 19 challenge on direct appeal. 20 A. Timeliness 21 Section 2255 sets a one-year limitations period, which, in pertinent part, runs 22 from the latest of the “date on which the judgment of conviction becomes final” or 23 the “date on which the right asserted as initially recognized by the Supreme Court, 24 if that right has been newly recognized by the Supreme Court and made retroactively 25 26 27 28 1 Petitioner appears to concede that his 1979 robbery conviction qualifies as a “serious violent felony” under the enumerated offense clause because the statutory maximum for that conviction was not “ten years or more” as required by the residual clause and elements clause. (See Pet’r’s Mot. at 6; Pet’r’s Suppl. Reply at 6.) –6– 95-cr-0708 1 applicable to cases on collateral review[.]” 28 U.S.C. § 2255(f)(1) & (3). Though 2 Petitioner filed his motion within one year of the Supreme Court’s Johnson decision, 3 the Government contends it is still time-barred because the sentencing court did not 4 rely on the residual clause in determining his 1990 robbery offense was a “serious 5 violent felony.” As such, the Government posits that Petitioner cannot rely on 6 Johnson to restart the limitations period. 7 1. 8 The Government cites an Eleventh Circuit decision, In re Moore, 830 F.3d 9 1268 (11th Cir. 2016), for the proposition that Petitioner must prove that the 10 sentencing court relied on the residual clause in order to obtain relief. (Resp’t’s 11 Opp’n to Mot. at 7.) However, a subsequent Eleventh Circuit decision found that 12 this standard “seems quite wrong” because it (1) implies district courts should ignore 13 recent Supreme Court decisions such as Descamps v. United States, 133 S. Ct. 2276 14 (2013), and Mathis v. United States, 136 S. Ct. 2243 (2016), “unless the sentencing 15 judge uttered the magic words ‘residual clause’” and (2) imposes an unfair burden 16 on defendants, especially as nothing in the law requires a judge to specify which 17 clause was relied on in imposing a sentence. In re Chance, 831 F.3d 1335, 1340 18 (11th Cir. 2016). Sentencing Record and Legal Background 19 Indeed, imposing such a burden would lead to inconsistent results, as any 20 judge who sentenced a defendant prior to Johnson was “doubtlessly unaware that 21 the sentencing transcript would later be combed for the words ‘elements clause’ or 22 ‘residual clause[.]’” See id. at 1341; see also United States v. Winston, 850 F.3d 23 677, 682 (4th Cir. 2017) (finding that imposing this burden “would result in 24 ‘selective application’ of the new rule of constitutional law announced in Johnson 25 II, violating the principle of treating similarly situated defendants the same”) 26 (quoting Teague v. Lane, 489 U.S. 288, 304 (1989)); United States v. Taylor, 873 27 F.3d 476, 480 (5th Cir. 2017) (“Many courts … have rejected the government's 28 position that the defendant must demonstrate that the district judge actually relied –7– 95-cr-0708 1 on the residual clause during sentencing.”); Leonard v. United States, No. 16-22612, 2 2016 WL 4576040, at *2 (S.D. Fla. Aug. 22, 2016) (finding that it would be unfair 3 to “impose upon [defendant] the high burden of proving the Court relied upon the [] 4 residual clause as opposed to the enumerated or elements clauses at sentencing”). 5 Accordingly, the Court declines to impose this burden on Petitioner. 6 Next, the Government relies on United States v. Geozos, 870 F.3d 890 (9th 7 Cir. 2017), which considered the sentencing record and relevant legal background 8 to determine whether the sentencing court relied on a residual clause in the context 9 of a second § 2255 motion. In Geozos, the Ninth Circuit held that “when it is unclear 10 whether a sentencing court relied on the residual clause[,] … but it may have, the 11 defendant’s § 2255 claim ‘relies on’ the constitutional rule announced in Johnson 12 II.” 870 F.3d at 896. The court clarified that even when the sentencing record is 13 unclear, if “binding circuit precedent at the time of sentencing was that crime Z 14 qualified as a violent felony under [a non-residual clause] … [this] would not render 15 unclear the ground on which the court’s [ ] determination rested.” Id. After 16 considering the “background legal environment and the sentencing record,” the court 17 found it was “unclear” whether the sentencing court relied on the residual clause and 18 concluded that defendant’s claim relied on Johnson. Id. at 897. 19 Petitioner disputes the applicability of Geozos to this case contending its 20 application is limited to the context of a second § 2255 motion. Even assuming the 21 standard in Geozos applies only to Petitioner’s first § 2255 motion, it remains unclear 22 from the record and relevant legal background whether the sentencing court relied 23 on the residual clause. 24 First, the record does not demonstrate which clause the sentencing court relied 25 on when it found Petitioner’s 1990 robbery conviction to be a “serious violent 26 felony.” Though the Government contends the language in the residual clause “was 27 never uttered,” “referenc[ed],” or “discuss[ed],” the record also omits any references 28 to the enumerated offense clause or the elements clause. (See Resp’t’s Suppl. Opp’n –8– 95-cr-0708 1 at 9.) The Government claims the sentencing court could not have relied on the 2 residual clause because the record indicates Petitioner’s § 211 conviction had a 3 maximum sentence of 5 years, which fails to meet the “term of imprisonment of 10 4 years or more” required under the residual clause. See 18 U.S.C. § 3559(c)(2)(F)(ii). 5 However, Petitioner’s sentence was enhanced by § 12022.5 for his use of a firearm, 6 which also carried a maximum sentence of 5 years. Accordingly, Petitioner faced a 7 potential ten-year sentence. See United States v. Rodriquez, 553 U.S. 377, 393 8 (2008) (finding that courts must consider recidivist sentencing enhancements in 9 determining the “maximum term of imprisonment”).2 The Government also argues 10 the sentencing court could not have relied on the residual clause because the 11 sentencing enhancement under § 12022.5 is an element of § 211. However, § 12022 12 enhancements are “sentencing provisions for punishment, not elements of the 13 underlying crime.” United States v. Heflin, 195 F. Supp. 3d 1134, 1138–39 (E.D. 14 Cal. 2016) (collecting cases); see also People v. Izaguirre, 42 Cal. 4th 126, 128 15 (2007) (“enhancements are not legal elements of the offenses to which they attach”); 16 May v. Sumner, 622 F.2d 997, 999 (9th Cir. 1980) (“§ 12022.5 was merely a 17 sentencing provision which provided that if a firearm was used to commit certain 18 felonies, including robbery, increased punishment must ensue. It did not define a 19 separate offense.”) (citing In re Culbreth, 551 P.2d 23 (1976)). Contrary to the 20 authority cited by the Government, Sotelo v. United States, 922 F.3d 848 (7th Cir. 21 2019), the sentencing court here did not “repeatedly ma[k]e clear that [Petitioner] 22 was being sentenced under the elements clause” or the enumerated offense clause. 23 See 922 F.3d at 852. 24 Second, the Government claims that “binding precedent at the time dictated 25 that California Penal Code § 211 offenses were elements-clause crimes[.]” (See 26 27 2 28 The Government does not claim there was any binding precedent at the time of sentencing that held otherwise. –9– 95-cr-0708 1 Resp’t’s Suppl. Opp’n. at 11 (citing In re Rogers, 825 F.3d 1335 (11th Cir. 2016).) 2 However, the three cases relied on by the Government are either not binding, see 3 United States v. Alexander, 980 F.2d 738 (9th Cir. 1992) (unpublished), or do not 4 stand for this proposition. See United States v. David H., 29 F.3d 489 (9th Cir. 5 1994); United States v. McDougherty, 920 F.2d 569 (9th Cir. 1990). For instance, 6 in David H., the Ninth Circuit found that California robbery under § 211 not only 7 falls within the elements clause of the Juvenile Delinquency Act, see 29 F.3d at 494 8 (“a violation of California Penal Code § 211 includes the element of “threatened use 9 of physical force against the person of another”), but also its residual clause. See id. 10 (“It is also a crime ‘that, by its very nature, involves a substantial risk that physical 11 force against the person of another may be used.’”). And in McDoughtery, the Ninth 12 Circuit found that § 211 was a crime of violence under the residual clause. See 920 13 F.2d at 574 (“Clearly then, robbery as defined in California falls under 18 U.S.C. [§] 14 16(b) as a felony that ‘by its nature, involves a substantial risk’ that physical force 15 may be used.”). Therefore, even if the sentencing court had relied on these cases in 16 Petitioner’s sentencing, they would not “dictate[ ] that California Penal Code § 211 17 offenses were elements-clause crimes[.]” See Resp’t’s Suppl. Opp’n at 11; cf. In re 18 Rogers, 825 F.3d at 1341 (finding Johnson does not apply “because binding 19 precedent clearly classifies as elements clause offenses the convictions [petitioner]’s 20 sentencing court relied upon as ACCA predicates”). 21 Because the sentencing court “may have” relied on the residual clause, 22 Petitioner’s claim “relies on” Johnson. See, e.g., Geozos, 870 F.3d at 896 (“[W]hen 23 it is unclear whether a sentencing court relied on the residual clause in finding that 24 a defendant qualified as an armed career criminal, but it may have, the defendant’s 25 § 2255 claim ‘relies on’ the constitutional rule announced in Johnson II.”); United 26 States v. Donnelly, 710 Fed. Appx. 335, 335 (9th Cir. 2018) (“[Defendant]’s motion 27 relies on Johnson … because it challenges a sentence that may have been based on 28 the legal theory that Johnson rejected…. The sentence may have been based on an – 10 – 95-cr-0708 1 invalid legal theory because ‘it is unclear from the record whether the sentencing 2 court relied on the residual clause.’”) (citing Geozos, 780 F.3d at 895); Bevly v. 3 United States, No. 16-965, 2016 WL 6893815 (E.D. Mo. Nov. 23, 2016) (“In a 4 situation where the Court cannot determine under what clause the prior offenses 5 were determined to be predicate offenses, the better approach is for the Court to find 6 relief is available, because the Court may have relied on the unconstitutional residual 7 clause.”). 2. 8 9 10 11 California Robbery Does Not Fall Within the Elements or Enumerated Offense Clauses The Court must determine whether Petitioner’s 1990 California robbery conviction under § 211 is a violent felony under the elements or enumerated offense clauses. To determine whether a state statute of conviction meets the definition of 12 “serious violent felony” under the three-strikes law, a court must apply the 13 “categorical approach” set forth in Taylor v. United States, 495 U.S. 575 (1990). 14 The court must “focus solely on whether the elements of the crime of conviction 15 16 17 sufficiently match the elements of [the generic offense], while ignoring the particular facts of the case.” See, e,g., Mathis v. United States, 136 S. Ct. 2243, 2248 (2016); United States v. Grisel, 488 F.3d 844, 847 (9th Cir. 2007). A violation of a state 18 statute is categorically a “serious violent felony” under the three-strikes law “only if 19 the [state] statute’s elements are the same as, or narrower than” those included in the 20 three-strikes law’s definition of “serious violent felony.” See Descamps v. United 21 22 23 24 25 26 27 States, 133 S. Ct. 2276, 2281 (2013). In identifying the elements of a state statute, a court considers the language of the statute and judicial opinions interpreting it. Rodriguez-Castellon v. Holder, 733 F.3d 847, 853 (9th Cir. 2013). If a state statute is divisible, the Court may “take into consideration certain documents, such as charging documents or a plea agreement, to determine whether the defendant was convicted of violating a prong of the statute that meets the [generic offense definition].” Rendon v. Holder, 764 F.3d 1077, 1083–84 (9th Cir. 2014). 28 – 11 – 95-cr-0708 1 However, the Ninth Circuit has specifically found that § 211 is an indivisible statute. 2 See United States v. Dixon, F.3d 1193, 1198 (9th Cir. 2015) 3 Using this framework, the Court begins with the statutory language of § 211, 4 which prohibits “the felonious taking of personal property in the possession of 5 another, from his person or immediate presence, and against his will, accomplished 6 by means of force or fear.” Cal. Penal Code § 211. “Fear” is defined as either “[t]he 7 fear of an unlawful injury to the person or property of the person robbed, or of any 8 relative of his or member of his family” or “[t]he fear of an immediate and unlawful 9 injury to the person or property of anyone in the company of the person robbed at 10 the time of the robbery.” Id. § 212. 11 a. Elements Clause 12 Petitioner argues that California robbery under § 211 is not a categorical 13 match to the elements clause under the Ninth Circuit’s decision in United States v. 14 Dixon, 805 F.3d 1193 (9th Cir. 2015). In Dixon, the Ninth Circuit determined § 211 15 is not a categorical match to the ACCA’s elements clause—which is identical to the 16 elements clause in the three-strikes law.3 See 805 F.3d at 1196. The court reasoned 17 that because “one may violate § 211 by accidentally using force,” it criminalizes a 18 broader swath of conduct than the ACCA elements clause since § 211 “does not 19 require finding the defendant acted with the intent to use force against another[.]” 20 Id. at 1196 (citing People v. Anderson, 252 P. 3d 968, 972 (2011)) (emphasis in 21 original). The Ninth Circuit reaffirmed this holding in Garcia-Lopez, 903 F.3d 887 22 (9th Cir. 2018), and found that based on Dixon, § 211 was not a categorical match 23 for the elements clause of 18 U.S.C. § 16(a) because “the wording of § 24 924(e)(2)(B)(i) [ACCA’s element clause] and § 16(a) are virtually identical” and 25 26 27 28 Compare 18 U.S.C. § 3559(c)(2)(F)(ii) (“has as an element the use, attempted use, or threatened use of physical force against the person of another”) with 18 U.S.C. § 924(e)(2)(B)(i) (“has as an element the use, attempted use, or threatened use of physical force against the person of another”). 3 – 12 – 95-cr-0708 1 must be interpreted in the same manner. 4 See Garcia-Lopez, 903 F.3d at 893. 2 Because the elements clause in the ACCA is identical to the elements clause in the 3 three-strikes law, § 211 is not a categorical match for the elements clause in the 4 three-strikes law. 5 b. Enumerated Offense Clause 6 In order to determine whether § 211 is a categorical match for the enumerated 7 offense clause, the Court must compare the statutory definition of robbery under 8 § 211 with the federal definition of robbery set forth in the three-strikes law. See 18 9 U.S.C. §§ 2111, 5 2113, 6 2118.7 As mentioned, § 211 proscribes “the felonious 10 taking of personal property in the possession of another, from his person or 11 immediate presence, and against his will, accomplished by means of force or fear,” 12 and “encompasses mere threats to property.” United States v. Becerril-Lopez, 541 13 F.3d 881, 891 (9th Cir. 2008) (“mere threats to property” include statements such as 14 “Give me $10 or I’ll key your car” or “Open the cash register or I’ll tag your 15 windows”). 16 17 18 19 20 21 22 23 24 25 26 27 28 Compare 18 U.S.C. § 16(a) (“has as an element the use, attempted use, or threatened use of physical force against the person or property of another”) with 18 U.S.C. § 924(e)(2)(B)(i) (“has as an element the use, attempted use, or threatened use of physical force against the person of another”). 5 Section 2111 provides, in full: “Whoever within the special maritime and territorial jurisdiction of the United States, by force and violence, or by intimidation, takes or attempts to take from the person or presence of another anything of value, shall be imprisoned not more than fifteen years. 6 Section 2113 provides, in relevant part: “Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or anything of value belonging to ... a bank ... shall be fined under this title or imprisoned not more than twenty years, or both.” 7 Section 2118 provides, in relevant part: “Whoever takes or attempts to take from the person or presence of another by force or violence or by intimidation any material or compound containing any quantity of a controlled substance belonging to ... a person registered with the [DEA] shall ... be fined under this title or imprisoned not more than twenty years, or both.” 4 – 13 – 95-cr-0708 1 The federal robbery statutes in the three-strikes law all share the common 2 element of taking anything of value “by force and violence, or by intimidation.” See 3 18 U.S.C. §§ 2111, 2113, 2118. Relatedly, the Ninth Circuit defines “intimidation” 4 under § 2113 to mean “willfully to take, or attempt to take, in such a way that would 5 put an ordinary, reasonable person in fear of bodily harm.” United States v. Selfa, 6 918 F.2d 749, 751 (9th Cir. 1990) (emphasis added). 7 Because § 211 includes “mere threats to property,” while the federal robbery 8 statutes require, at a minimum, conduct that “would put an ordinary reasonable 9 person in fear of bodily harm,” see id., § 211 “sweeps more broadly” than the generic 10 federal crime and thus cannot serve as a statutory predicate. See U.S. v. Cabrera- 11 Gutierrez, 756 F.3d 1125, 1133 (9th Cir. 2014); see also United States v. 12 Dominguez-Maroyoqui, 748 F.3d 918, 920 (9th Cir. 2014) (finding that if the 13 elements of the offense “criminalize a broader swatch of conduct” than the conduct 14 covered by the generic federal definition, the offense “can’t qualify as a crime of 15 violence, even if the facts underlying [defendant’s] own conviction might satisfy 16 [the generic federal definition]”) (citations and internal quotations omitted). 17 Because § 211 punishes conduct that is outside the reach of §§ 2111, 2113 and 2118, 18 it is not a categorical match under the enumerated offense clause in the three-strikes 19 law. 20 c. Residual Clause 21 Because § 211 does not categorically qualify under the elements clause or the 22 enumerated offense clause, Petitioner’s prior conviction for § 211 can only qualify 23 as a serious violent felony if it falls under the residual clause. It does not. The 24 Government concedes the residual clause in § 3559 is “materially identical” to the 25 unconstitutionally vague residual clause in Dimaya. Thus, Petitioner’s 1990 robbery 26 conviction under § 211 may not serve as a predicate offense for the three-strikes law. 27 (See Resp’t’s Suppl. Opp’n at 1–2.) 28 /// – 14 – 95-cr-0708 1 B. Procedural Default 2 Next, the Government contends Petitioner procedurally defaulted his claims 3 by failing to raise his vagueness challenge on direct appeal. However, Petitioner’s 4 procedural default is excused because he is able to demonstrate cause and prejudice. 5 A § 2255 motion may be denied as procedurally defaulted if the claim 6 presented was not raised on direct appeal. Sanchez-Llamas v. Oregon, 548 U.S. 331, 7 350–51 (2006). But procedural default is excused if Petitioner shows cause and 8 prejudice for his default. See id. at 351. The “cause” prong is satisfied if a 9 petitioner’s claim is “so novel that its legal basis [was] not reasonably available to 10 counsel.” Reed v. Ross, 468 U.S. 1, 16 (1984). A claim is novel where a Supreme 11 Court decision: (1) “explicitly overrule[s] one of th[e] Court’s precedents”; (2) “may 12 overturn[ ] a longstanding and widespread practice to which th[e] Court has not 13 spoken, but which a near-unanimous body of lower court authority has expressly 14 approved”; or (3) “disapprove[s] a practice that th[e] Court arguably has sanctioned 15 in prior cases.” Reed, 468 U.S. at 17 (internal citations omitted). “By definition, 16 when a case falling into one of the first two categories is given retroactive 17 application, there will almost certainly have been no reasonable basis upon which 18 an attorney previously could have urged a … court to adopt the position that [the 19 Supreme Court] has ultimately adopted,” and such a case will satisfy the cause 20 requirement. Id. 21 Here, Petitioner satisfies the cause requirement because he has shown that his 22 vagueness challenge falls within the second Reed category. 23 Petitioner’s sentencing in 1996, the Ninth Circuit and other circuit courts had 24 consistently rejected a vagueness challenge to the residual clause of the ACCA. See, 25 e.g., United States v. Sorenson, 914 F.2d 173, 175 (9th Cir. 1990) (“His void for 26 vagueness argument fails … there is no indication that the sentence enhancement [of 27 the ACCA] is so vague that it grants undue discretion to law enforcement officials.”) 28 United States v. Argo, 925 F.2d 1133, 1134–35 (9th Cir. 1991) (finding sentence – 15 – At the time of 95-cr-0708 1 enhancement of the ACCA is not void for vagueness under Sorenson); United States 2 v. Presley, 52 F.3d 64, 68 (4th Cir. 1995) (“We agree with the Ninth Circuit that 3 ‘[t]he factors for sentence enhancement under 18 U.S.C. § 924(e)(1) are quite 4 specific’ … thus ACCA is not void for vagueness.”) (citing Sorenson, 914 F.2d 175); 5 United States v. Veasey, 73 F.3d 363 (6th Cir. 1995) (unpublished) (“This 6 constitutional argument has been rejected by every Circuit that has considered it …. 7 The ACCA is not unconstitutionally vague.”) (internal citation omitted); see also 8 United States v. Howard, No 16-1538, 2017 WL 634674, at *3 (S.D. Cal. Feb. 16, 9 2017) (finding that defendant “demonstrated cause of his procedural default” 10 because “before Johnson, vagueness challenges to the residual clauses in ACCA 11 were foreclosed by clear Supreme Court precedent”); Dota v. United States, 368 F. 12 Supp. 3d 1354, 1362 (C.D. Cal. 2018) (“It was only after the Supreme Court 13 invalidated the residual clause of the ACCA in Johnson, and certainly after the 14 Supreme Court invalidated the identically worded residual clause of § 16(b), that 15 Petitioner’s current claim—that the residual clause of § 924(c)(3)(B) was 16 unconstitutionally vague—lost its novelty.”) 17 Petitioner had cause not to challenge the constitutionality of the residual 18 clause on direct appeal because this argument was foreclosed by “a near-unanimous 19 body of lower court authority.” See Reed, 468 U.S. at 17; see also Boyer v. United 20 States, 55 F.3d 296, 299 (7th Cir. 1995) (“[A] theory which has been argued 21 thoroughly and rejected in the past but which now has been accepted for the first 22 time” would “clearly provide[ ] cause for a procedural default[.]”). Petitioner has 23 also established prejudice because he suffered additional custodial time due to 24 application of an erroneous sentencing enhancement. See 18 U.S.C. § 3559(c). 25 Accordingly, Petitioner has demonstrated both cause and prejudice sufficient to 26 excuse any procedural default. 27 /// 28 /// – 16 – 95-cr-0708 1 III. 2 CONCLUSION 3 Because there are not two or more “serious violent felony” predicate offenses 4 supporting Petitioner’s sentence under the three-strikes law, Petitioner is entitled to 5 be resentenced on his underlying convictions without the three-strikes enhancement. 6 Accordingly, the Court ORDERS the following: 7 1. Petitioner’s motion is GRANTED; 8 2. Petitioner’s sentence pursuant to 18 U.S.C. § 3559(c) is VACATED. 9 However, all terms and provisions of the original judgment remain in 10 effect; 11 3. The United States Probation Office shall file a copy of the original 12 Presentence Report and a supplement to the Presentence Report advising 13 the Court of any relevant information pertaining to Petitioner’s time in 14 custody and including a sentencing recommendation in accordance with 15 this Order by June 27, 2019.8 16 4. A resentencing hearing will be set for July 11, 2019 at 10:00 a.m. before 17 the undersigned. Should the parties wish to file memoranda pertaining to 18 the resentencing, they must do so on or before July 4, 2019. 19 20 IT IS SO ORDERED. Dated: June 12, 2019 21 22 23 24 25 26 27 28 The Government has pointed out that after Petitioner’s conviction in this case, he also sustained a conviction in state court for robbery under California Penal Code 211 and was sentenced to a term of 25 years to life. 8 – 17 – 95-cr-0708
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