Alisic v. United States
| Decision Date | 21 March 2021 |
| Docket Number | CV 19-05932 PHX DGC CDB,CR 06-00717(2) PHX DGC |
| Parties | Adnan Alisic, Defendant/Movant, v. United States of America, Respondents. |
| Court | U.S. District Court — District of Arizona |
REPORT AND RECOMMENDATION
Before the Court is Movant Adnan Alisic's amended second or successive § 2255 motion in which he challenges his conviction and sentence for violation of 18 U.S.C. § 924(c). Alisic filed an application in the United States Court of Appeals for the Ninth Circuit seeking leave to file a second or successive motion pursuant to 28 U.S.C. § 2255. (Civil Docket (“CV”) ECF No. 13-1). The Ninth Circuit granted Alisic leave to proceed and ordered the matter transferred to the District Court on August 28, 2019. (CV ECF No. 13).
A complaint filed on July 23, 2006, charged Alisic and two codefendants with the robbery an armored car. (Criminal Docket (“CR”) ECF No. 1). On September 19, 2006 an indictment charged Alisic and three codefendants with one count of conspiracy in violation of 18 U.S.C. §§ 2, 371, and 1951 (the “Hobbs Act”); one count of interference with interstate commerce by threats, violence “and” robbery, and aiding and abetting, in violation of 18 U.S.C. §§ 2 and 1951; and one count of using a firearm in a crime of violence in violation of 18 U.S.C. § 924(c). (CR ECF No. 35). A second superseding indictment, returned on November 6, 2007, charged Alisic and one codefendant with one count of conspiracy in violation of 18 U.S.C. §§ 2 and 1951 (Count One); one count of interference with interstate commerce by threats, violence “and” robbery, and aiding and abetting, in violation of 18 U.S.C. §§ 2 and 1951 (Count Two); and one count of using a firearm in a crime of violence in violation of 18 U.S.C. § 924(c) (Count Three). (CR ECF No. 133).
At the conclusion of a jury trial during which Alisic testified, the jury found Alisic guilty of “Conspiracy, ” “Interference with Commerce by Threats, Violence and Robbery, ” and “Use of a Firearm During the Commission of a Crime of Violence.” (CR ECF No. 161). Additionally, the jury found Alisic criminally responsible as a principal, aider and abettor, or coconspirator, for the conduct of both possessing and carrying a firearm during the commission of the crimes. (Id.). On April 9, 2008 the Court sentenced Alisic to concurrent terms of 151 months' imprisonment pursuant to the conspiracy and Hobbs Act convictions, and to the mandatory consecutive term of 60 months' imprisonment on the § 924(c) conviction. (CR ECF Nos. 209 & 210).[1]
Alisic took a timely appeal of his conviction under § 924(c) and his sentence. Alisic alleged the Court erred by “denying his motion under Federal Rule of Criminal Procedure 29 for a judgment of acquittal on the government's 18 U.S.C. § 924(c) charge.” United States v. Alisic, 357 Fed.Appx. 778, 779 (9th Cir. 2009).[2] He also argued issues regarding the Court's application of the United States Sentencing Guidelines. Id. at 779-80.
The Ninth Circuit Court of Appeals affirmed Alisic's 924(c) conviction and sentence, concluding:
Under the first clause of § 924(c), the government presented persuasive evidence that Alisic carried the pistol in the van he used to commit the robbery. See Muscarello v. United States, 524 U.S. 125, 126-27 (1998) (). With respect to the “in relation to any crime of violence” element, the government presented evidence that Alisic told [a codefendant] that the gun would “be used if somebody's trying to shoot back at us.” This evidence meets this court's admonition that carrying a firearm relates to the underlying offense when the firearm facilitated or had a role in the crime.
Id. at 779. The United States Supreme Court denied a petition for a writ of certiorari. See United States v. Alisic, 559 U.S. 1024 (2010).
Alisic filed a pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, asserting he was denied his right to the effective assistance of trial counsel with regard to counsel's defense strategy of duress, counsel's trial performance with regard to witnesses, and counsel's performance at sentencing. The Court adopted the Report and Recommendation of the magistrate judge and denied relief. See Alisic v. United States, 2012 WL 353770 (D. Ariz. Feb. 3, 2012). Alisic appealed and the Ninth Circuit Court of Appeals denied a certificate of appealability, id., and the Supreme Court denied a petition for a writ of certiorari. See Alisic v. United States, 568 U.S. 1245 (2013).
Alisic, proceeding pro se, sought leave to file a second or successive motion pursuant to 28 U.S.C. § 2255 on January 10, 2019. (CV ECF No. 13-5 at 3-6). Alisic asserted:
On November 21, 2018, based on jury instructions, I found out that I was found guilty of extortion and not robbery. Since Johnson and Dimaya invalidated the residual clause of 924(c), and since extortion is not a crime of violence under the “force” clause of 924(c), I am innocent of 924(c) charge.
(CV ECF No. 13-5 at 5). The Government responded that, although Alisic based his claims on Johnson v. United States, 576 U.S. 591 (2015) and Sessions v. Dimaya, 138 S.Ct. 1204 (2018), it was actually United States v. Davis, 139 S.Ct. 2319 (2019) (issued after Alisic filed his motion for leave to file a second or successive § 2255 motion), that permitted Alisic to attack his § 924(c) conviction. (CV ECF No. 13-6 at 1-2). The Government did not oppose certification pursuant to 28 U.S.C. § 2255(h), but reserved the right to oppose the second or successive § 2255 motion on the merits. (Id.).
Without opining as to the merits of Alisic's claim, the Ninth Circuit granted leave to file a second or successive § 2255 motion and transferred the matter to the District Court. (CV ECF No. 13). Alisic docketed a pro se § 2255 motion. (CV ECF No. 14). Alisic obtained counsel and sought leave to file an amended motion (CV ECF No. 17), and filed an amended § 2255 motion on May 21, 2020. (CV ECF No. 25). The Government responded to the motion asserting, inter alia, some or all of Alisic's claims are procedurally defaulted (CV ECF No. 29), [3] and Alisic filed a reply (CV ECF No. 32).
Alisic argues:
Because the jury was permitted to convict Alisic for either Hobbs Act robbery or extortion, and Hobbs Act extortion, under 18 U.S.C. § 1951(a), does not qualify as a “crime of violence” under either § 924(c)(3)(A) or § 924(c)(3)(B) (in light of Davis), Alisic's conviction under 18 U.S.C. § 924(c) is unconstitutional under Davis, and must be vacated. A general verdict of guilty does not reveal any unanimous finding by the jury that the defendant was guilty of carrying a firearm during either of the alternative methods (robbery and extortion) of violating the Hobbs Act. See, e.g., In re Gomez, 830 F.3d 1225, 1227 (11th Cir. 2016). Moreover, the jury was wrongly instructed that Count 2 was necessarily a “crime of violence, ” an element of Count 3.
(ECF No. 25 at 12-13). Alisic presents two intertwined claims for relief: (1) the jury instructions “permitted” the jury to convict him of Hobbs Act extortion, rather than Hobbs Act robbery; and (2) because he was, he asserts, actually convicted of Hobbs Act extortion and Hobbs Act extortion is not a “crime of violence” in light of the decision in Davis, his conviction and sentence for violation of § 924(c) must be vacated.
A. 28 U.S.C. § 2255
Section 2255 is, essentially, a means of habeas corpus relief for federal prisoners. See United States v. Hayman, 342 U.S. 205, 212 (1952). A federal court may vacate, set aside, or correct a federal prisoner's sentence if the sentence was imposed in violation of the Constitution or laws of the United States, the court was without jurisdiction to impose the sentence, the sentence was in excess of the maximum authorized by law, or if the sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a); United States v. Swisher, 811 F.3d 299, 306 (9th Cir. 2016).
B. Procedural default
Because “[h]abeas 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), a section 2255 movant procedurally defaults all claims not raised in his direct appeal, other than claims asserting the movant was deprived of their right to the effective assistance of counsel. See Massaro v. United States, 538 U.S. 500, 504-05 (2003); United States v. Frady, 456 U.S. 152, 167-68 (1982); United States v. Ratigan, 351 F.3d 957, 964 (9th Cir. 2003); United States v. Skurdal, 341 F.3d 921, 925 (9th Cir. 2003). “To challenge a conviction in a § 2255 proceeding based upon a claim of error that could have been raised on direct appeal but was not, a defendant must demonstrate both cause to excuse the procedural default, as well as actual prejudice resulting from that error.” United States v. Seng Chen Yong, 926 F.3d 582, 590 (9th Cir. 2019). Absent a showing of both cause for the default and a showing of prejudice arising from the default, or a colorable claim of factual innocence rather than mere legal insufficiency, the Court should not consider the merits of a § 2255 claim not raised in the movant's appeal. See Bousley, 523 U.S. at 622, Frady, 456 U.S. at 167-68; Ratigan, 351 F.3d at 962.
It is arguable whether the previous unavailability of the Davis claim raised by Alisic establishes cause for his failure to raise a Davis claim on appeal. See United States v. Garcia, 811 Fed.Appx. 472, 479 (10th Cir. 2020) (...
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