Alvarado v. United States
| Decision Date | 14 October 2016 |
| Docket Number | Case No. CR 09-939-GW-61,Case No. CV 16-4411-GW |
| Court | U.S. District Court — Central District of California |
| Parties | David Alvarado v. United States of America |
CIVIL MINUTES—GENERAL
Present: The Honorable GEORGE H. WU, UNITED STATES DISTRICT JUDGE
Javier Gonzalez
Deputy Clerk
None Present
Court Reporter
Attorneys Present for Plaintiff(s)
None Present
Attorneys Present for Defendant(s)
In 2009, David Alvarado ("Petitioner") was charged in five counts of a 78-count Indictment against multiple defendants. See Mot. to Vacate ("Mot.") Ex. A, Docket No. 1-1.1 On August 8, 2012, Petitioner pled guilty pursuant to a written plea agreement to Count 1 of the Indictment, which charged Petitioner with conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"), in violation of 18 U.S.C. § 1962(d). See id. Ex. B, Docket No. 1-1 at pages 202-203. The remaining counts were dismissed. Id.
In the factual basis of the plea agreement, Petitioner admitted that he was a member of the Avenues street gang, "an enterprise whose members engage in violent crimes and narcotics distribution," and that as part of his membership in the gang, Petitioner "agreed with others to conduct and participate in the offenses of the gang as part of a pattern of racketeering activity." Id. ¶ 9. The plea agreement described various violent attacks committed by Petitioner as part of his role in the gang, as well as his possession of a firearm. Id.
The Presentence Report ("PSR") concluded that Petitioner was a career offender underU.S.S.G. § 4B1.1 because "the instant offense is a crime of violence," and because Petitioner had two prior adult felony convictions that qualified as crimes of violence. See PSR ¶¶ 136, 150, 154, CR Docket No. 3213. The career offender determination increased Petitioner's criminal history category from IV to VI; his base offense level from 27 to 32; and his overall offense level from 24 to 29. Id. ¶¶ 134, 138, 163-64. As a result, Petitioner's guideline range was increased from 77-96 months to 151-188 months. Id. ¶ 212.
Now pending before the Court is Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255. See Mot. to Vacate ("Mot."), Docket No. 1. The United States has opposed the Motion, see Opp'n to Mot. ("Opp'n"), Docket No. 15, to which Petitioner has replied. See Reply, Docket No. 18.
Under 28 U.S.C. § 2255:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
See 28 U.S.C. § 2255. To obtain relief under Section 2255, "a prisoner must clear a significantly higher hurdle than would exist on direct appeal." See United States v. Frady, 456 U.S. 152, 166 (1982). "If a petitioner does not allege lack of jurisdiction or constitutional error, an error of law will not provide a basis for habeas relief unless that error resulted in a complete miscarriage of justice or in a proceeding inconsistent with the rudimentary demands of fair procedure." Hamilton v. United States, 67 F.3d 761, 763-64 (9th Cir. 1995).
Petitioner contends that he is entitled to be resentenced because, under the Supreme Court's recent decision in Johnson v. United States, 135 S.Ct. 2251 (2015), he is now serving an illegal and unconstitutional career offender sentence. See Mot. at 3:7-11. Petitioner argues that, following Johnson, his two prior robbery convictions and the instant RICO conspiracy conviction do not qualify as "crime[s] of violence" under the Career Offender Guideline. Id.
The United States contends that Petitioner's claim is barred because it is procedurally defaulted and untimely. See Opp'n at 3:11-16. In addition, the United States argues that Petitioner's claim fails on the merits, because robbery and RICO conspiracy are crimes of violence that are not affected by the holding in Johnson. Id.
In Johnson, the Supreme Court held that the residual clause in the definition of a "violent felony" under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague. See generally Johnson, 135 S.Ct. 2551. The ACCA residual clause defined a violent felony as "any crime punishable by imprisonment exceeding one year . . . [t]hat is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." See 18 U.S.C. § 924(e)(2)(B)(ii). The Court explained that the ACCA requires courts to use a categorical approach when deciding whether an offense "otherwise presents a serious potential risk of physical injury to another," which requires a court to assess "whether a crime qualifies as a violent felony in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion." See Johnson, 135 S.Ct. at 2257 (internal quotations and citations omitted). However, the Johnson Court held that this approach left Id.
In addition, the Court reasoned that:
the residual clause leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony. It is one thing to apply an imprecise "serious potential risk" standard to real-world facts; it is quite another to apply it to a judge-imagined abstraction. By asking whether the crime "otherwise involves conduct that presents a serious potential risk," moreover, the residual clause forces courts to interpret "serious potential risk" in light of the four enumerated crimes—burglary, arson, extortion, and crimes involving the use of explosives. These offenses are "far from clear in respect to the degree of risk each poses."
Id. at 2258 (emphasis in original) (citations omitted). The Court therefore held that the Id. at 2557.
First, the United States contends that Petitioner's claim is procedurally defaulted because he failed to raise it on direct appeal. See Opp'n at 3:18-20.
"Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised [] only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent." Bousley v. United States, 523 U.S. 614, 622 (1998) (internal quotation marks and citations omitted).
The Supreme Court has held that the cause prong is satisfied where a claim is "novel" - meaning that, at the time of the direct appeal, "there was no reasonable basis in existing law" for raising the claim. See Reed v. Ross, 468 U.S. 1, 15 (1984). In Reed, the Court articulated three situations in which a claim could be novel: (1) where a Supreme Court decision "explicitly overrule[s] one of [the Court's] precedents"; (2) where a Supreme Court decision "may overturn a longstanding and widespread practice to which [the Court] has not spoken, but which a near-unanimous body of lower court authority has expressly approved"; and (3) where a Supreme Court decision "disapprove[s] a practice [the Court] arguably has sanctioned in prior cases." Id. at 17 (internal quotation marks and citations omitted).
The United States contends that Petitioner's claim is not "novel" because "[a]t the time of [P]etitioner's sentencing, arguments challenging the ACCA's identically worded residual clause as unconstitutionally vague were not novel," and had been raised in numerous cases. See Opp'n at 4:24-28. In addition, the United States argues that "challenges to whether various prior convictions constituted crimes of violence were common" at the time of Petitioner's sentencing. Id. at 5:4-11.
However, the Court would agree with Petitioner that his claim satisfies the first Reed situation, because Johnson expressly overruled Supreme Court precedent. See Johnson, 135 S.Ct. at 2563 ( ). Indeed, at the time of Petitioner's sentencing, his instant claim was directly foreclosed by James and Sykes, which held that similar residual clauses defining crimes of violence were not overly broad.2 Moreover, in the wake of Johnson, courts in the Ninth Circuit have held that a § 2255 motion based on a Johnson claim is not procedurally defaulted because the claim was not "reasonably available" prior to Johnson. See United Statesv. Garcia, ___ F.Supp.3d ___, 2016 WL 4364439, *3 (N.D. Cal. Aug. 16, 2016); McGary, 2016 WL 4126451, at *3.
"If a petitioner succeeds in showing cause, the prejudice prong of the test requires demonstrating 'not merely that the errors . . . [in the proceedings] created a possibility of prejudice, but that they worked to his actual and substantial...
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