Alisic v. United States

• Decision Date: 12 August 2021
• Docket Number: CR-06-00717-02-PHX-DGC,CV-19-05932-PHX-DGC (CDB)
• Parties: Adnan Alisic, Movant/Defendant, v. United States of America, Respondent/Plaintiff.
• Court: U.S. District Court — District of Arizona

Adnan Alisic, Movant/Defendant, v. United States of America, Respondent/Plaintiff.

Nos. CV-19-05932-PHX-DGC (CDB), CR-06-00717-02-PHX-DGC

United States District Court, D. Arizona

August 12, 2021

ORDER

David G, Campbell Senior United States District Judge

In April 2008, the Court sentenced Adnan Alisic to more than seventeen years in prison after a jury found him guilty of three charges related to the robbery of an armored car. See Case No. CR-06-00717, CR Docs. 161, 209 210.^[1] Alisic has filed a motion to vacate his sentence under 28 U.S.C. § 2255. CV Doc. 25. Magistrate Judge Camille Bibles issued a report recommending that the motion be denied (“R&R”). CV Doc. 33. Alisic filed an objection, to which the government responded. CV Docs. 36 37. For reasons stated below, the Court will accept the R&R and deny the motion.^[2]

I. Background.

On July 21, 2006, Alisic and his codefendants robbed an armored car outside of a casino. In November 2007, Alisic was charged with two crimes under the Hobbs Act, 18 U.S.C. § 1951 - conspiracy (count one) and interference with interstate commerce by threat, violence, and robbery (count two). CR Doc. 133 at 1-5. Alisic also was charged with using a firearm in a crime of violence under 18 U.S.C. § 924(c) (count three). Id. at 5-6.

On November 28, 2007, following a six-day trial, the jury found Alisic guilty on all counts. CR Doc. 161 at 1. On April 9 2008, the Court sentenced Alisic to concurrent terms of 151 months in prison on counts one and two and a consecutive term of 60 months on count three. CR Docs. 209, 210. The Ninth Circuit affirmed the conviction and sentence. CR Doc. 274; see United States v. Alisic, 357 Fed.Appx. 778 (9th Cir. 2009), cert. denied, 559 U.S. 1024 (2010).

Section 2255 provides a means of habeas corpus relief for federal prisoners. See United States v. Hayman, 342 U.S 205, 212 (1952); Davis v. United States, 417 U.S. 333, 343 (1974). A court may vacate a prisoner's sentence if the sentence violated the Constitution or laws of the United States, the court lacked jurisdiction to impose the sentence, or the sentence exceeded the maximum authorized by law. 28 U.S.C. § 2255(a); see Davis, 417 U.S. at 344-45; United States v. Swisher, 811 F.3d 299, 306 (9th Cir. 2016). Alisic moved to vacate his sentence under § 2255 in March 2011. See Case No. CV-11-0063, Doc. 4. The Court denied the motion and the Ninth Circuit denied a certificate of appealability. Id., Docs. 16, 26; see also Alisic v. United States, 2012 WL 353770, at *9 (D. Ariz. Feb. 3, 2012); Alisic v. United States, No. 12-15980 (9th Cir. Oct. 23, 2012), cert. denied, 568 U.S. 1245 (2013).

In January 2020, the Ninth Circuit granted Alisic's application to file a second or successive § 2255 motion and transferred the matter to this Court. See CV Doc. 13; CR Doc. 286; Alisic v. United States, No. 19-70089, at *1 (9th Cir. Jan. 13, 2020) (granting the application but expressing no opinion on the merits of Alisic's § 2255 claims). In May 2020, Alisic filed an amended § 2255 motion through appointed counsel, challenging his § 924(c) conviction (count three). CV Doc. 25. Alisic claims that the jury instructions permitted him to be convicted of Hobbs Act extortion, and because that offense is not a “crime of violence” in light of United States v. Davis, 139 S.Ct. 2319, 2336 (2019), it cannot serve as a predicate offense for a § 924(c) conviction. Id. at 5-13; see also CV Doc. 36 at 4 (arguing that “the true offense of conviction was actually extortion, rather than robbery, and . . . extortion was not, categorically, a ‘crime of violence'”). Alisic further claims that the Court erred in instructing the jury that Hobbs Act robbery is a crime of violence for § 924(c) purposes. CV Docs. 25 at 13, 36 at 2. The government argues that Alisic's § 2255 claims are procedurally defaulted because he did not raise them on direct appeal, and Alisic has not established cause and prejudice, or actual innocence, to excuse the default. CV Docs. 29 at 7-14, 37 at 2-6.

Judge Bibles issued a thorough R&R on March 22, 2021. CV Doc. 33. She found that because Alisic's claims fail on the merits, he has not established actual prejudice arising from the procedural default. See Id. at 7-9. Alisic filed an objection, to which the government responded. CV Docs. 36, 37.

II. R&R Standard of Review.

This Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The Court “must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). The Court is not required to conduct “any review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985); see also 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3).

III. Discussion.

“Habeas review is an extraordinary remedy and will not be allowed to do service for an appeal.” Bousley v. United States, 523 U.S. 614, 621 (1998). Where a defendant fails to raise a claim on direct review, the claim is procedurally defaulted for purposes of habeas relief. Id. at 622. A procedurally defaulted claim “may be raised in habeas only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent.” Id. (quotation marks and citations omitted); see Chibeast v. United States, No. CR-11-012436-PHX-SRB (CDB), 2020 WL 8083575, at *5 (D. Ariz. Dec. 9, 2020) (explaining that “[a]bsent a showing of both cause for the default and a showing of prejudice arising from the default, or a colorable claim of actual, factual innocence, rather than mere legal insufficiency, ” a court should not grant relief on a § 2255 claim not raised in the defendant's direct appeal) (citing Bousley, 523 U.S. at 622; United States v. Frady, 456 U.S. 152, 167-68 (1982)). “To establish ‘actual prejudice,' [the defendant] ‘must shoulder the burden of showing, not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'” United States v. Pettigrew, 346 F.3d 1139, 1144 (D.C. Cir. 2003) (quoting Frady, 456 U.S. at 170).

Alisic's § 2255 claims are procedurally defaulted because he did not raise the claims in his direct appeal to the Ninth Circuit. See Alisic, 357 Fed.Appx. 778, at *1 (rejecting Alisic's arguments that a judgment of acquittal should have been granted on the § 924(c) charge and that the Court misapplied the sentencing guidelines). The Court agrees with the government and Judge Bibles that Alisic has failed to establish actual prejudice from the default because his § 2255 claims lack merit.

A. Alisic Was Not Convicted of Hobbs Act Extortion.

A person commits a crime under the Hobbs Act where he “obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion[.]” 18 U.S.C. § 1951(a). The term “robbery” means the unlawful taking of property from a person “against his will, by means of actual or threatened force, or violence, or fear of injury[.]” 18 U.S.C. § 1951(a)(1) (emphasis added). The term “extortion” means the obtaining of property from another “with his consent, induced by wrongful use of actual or threatened force, violence, or fear[.]” 18 U.S.C. § 1951(a)(2) (emphasis added). As Judge Bibles explains in her R&R, Hobbs Act robbery and Hobbs Act extortion are separate crimes with different elements. CV Doc. 33 at 9 (citing United States v. McCallister, No. 15-0171 (ABJ), 2016 WL3072237, at *8-9 (D.D.C. 2016)); see also United States v. Gooch, 850 F.3d 285, 291 (6th Cir. 2017) (“[W]e conclude that § 1951 is a divisible statute setting out separate crimes of Hobbs Act robbery and Hobbs Act extortion.”); United States v. O'Connor, 874 F.3d 1147, 1152 (10th Cir. 2017) (“The Hobbs Act . . . is a divisible statute setting out two separate crimes - Hobbs Act robbery and Hobbs Act extortion.”). “Hobbs Act robbery by definition requires non-consensual taking, whereas extortion takes place when property is taken or obtained with consent.” United States v. Richardson, No. 1:97-CR-05129-LJO, 2017 WL 3896307, at *5 (E.D. Cal. Sept. 6, 2017).

Alisic contends that Jury Instruction 17 “opened the door for a jury finding of guilt under either prong (extortion or robbery) of § 1951(a), thus allowing a verdict of guilty on [count two] without a finding of robbery.” CV Doc. 36 at 8. Jury Instruction 17, which was the then-current Ninth Circuit model instruction for Hobbs Act robbery, stated in part:

The defendant is charged in Count Two of the Second Superseding Indictment with the crime of Interference with Commerce by Threats, Violence or Robbery in violation of Section 1951 of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant induced Christopher Michael Williams and/or Joshua Lane Oullette, of the Bantek Armored Car Company, to part with property by the wrongful use of threats, violence or robbery;

Second, the defendant acted with the intent to obtain the property that the defendant knew he was not entitled to receive;

. . . .

The term “robbery” means the unlawful taking or obtaining of personal property from the person, against his will, by means of actual or threatened force, or violence or fear of injury, to his person or property, or property in his custody or possession.

CR Doc. 153 at 18 (emphasis added); see also CR Doc. 271 at 92-93.

Because the instruction required that the armored...