Arnold v. United States

Decision Date20 January 2022
Docket NumberCV-16-01839-PHX-SMM (DMF),CR-97-00176-PHX-SMM
PartiesJames Wade Arnold, Movant, v. United States of America, Respondent.
CourtU.S. District Court — District of Arizona

REPORT AND RECOMMENDATION

Honorable Deborah M. Fine United States Magistrate Judge

TO THE HONORABLE STEPHEN M. MCNAMEE, SENIOR UNITED STATES DISTRICT JUDGE:

On June 9, 2016, James Wade Arnold (Movant or “Arnold”) filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255, or in the Alternative, Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (“Motion”). (Doc 1)[1]Movant argued that his mandatory life sentence for bank robbery pursuant to the federal “three strikes” provision in 18 U.S.C. § 3559(c), his mandatory consecutive 25-year sentence under 18 U.S.C. § 924(c) for possession of a firearm during a bank robbery, and his designation as a career offender under U.S.S.G. § 4B1.1 were rendered unconstitutional by the Supreme Court in Johnson v. United States, 576 U.S 591 (2015). (Doc. 1 at 1) Movant contended that while Johnson expressly held that the residual clause in 18 U.S.C. § 924(e) was unconstitutionally vague, the decision's reasoning applied equally to the residual clauses in 18 U.S.C. §§ 924(c) and 3559(c) and in U.S.S.G. § 4B1.1. (Id.)

Respondent moved for a stay of the proceedings pending the outcome of the Supreme Court cases in Beckles v. United States, __ U.S. __, 137 S.Ct. 886 (2017) and Sessions v. Dimaya, __ U.S. __, 138 S.Ct. 1204 (2018), asserting these matters addressed questions directly bearing on issues raised in the Motion. (Doc. 4) After Beckles was decided in March 2017, a stay was issued granting Respondent until after Dimaya was resolved to file a response. (Doc. 22) Respondent filed its response in July 2018 (Doc. 32), Movant filed his reply (Doc. 37), and in September 2018 the parties provided additional argument on the Ninth Circuit's opinion in United States v. Blackstone, 903 F.3d 1020 (9th Cir. 2018), cert. denied, 139 S.Ct. 2762 (2019). (Docs. 38, 39)

On February 15, 2019, undersigned filed a Report and Recommendation recommending that the Motion be denied and dismissed with prejudice as untimely under 28 U.S.C. § 2255(f), but also recommended that a certificate of appealability be granted because the Ninth Circuit's opinion in Blackstone was not final. (Doc. 41) On March 25, 2019, the Court adopted the Report and Recommendation, denied and dismissed the Motion with prejudice, and granted a certificate of appealability. (Doc. 45) Movant filed a notice of appeal to the Ninth Circuit. (Doc. 48)

The Ninth Circuit granted the parties' joint motion to vacate the Court's order dismissing the Motion as untimely and remanded for “consideration on the merits, in light of Respondent's deliberate waiver of a timeliness defense”[2] pursuant to Wood v. Milyard, 566 U.S. 463, 466 (2012). (Doc. 50-1 at 1) In December 2020, the Court referred this matter to the undersigned for a Report and Recommendation consistent with the Ninth Circuit's mandate. (Doc. 51) Undersigned ordered the parties to file supplemental briefing on the merits of the Motion addressing, at a minimum, the effects of the Supreme Court's decision in United States v. Davis, __ U.S. __, 139 S.Ct. 2319 (2019) on the Motion, including the impact of Davis on the Ninth Circuit's decision in Blackstone. (Doc. 52)

Movant filed through counsel his Supplemental Brief on Remand on February 22, 2021. (Doc. 53) After obtaining extensions of time, Respondent filed its Response to Movant's Supplemental Brief on Remand on September 29, 2021. (Doc. 64) Movant filed his Reply on October 6, 2021. (Doc. 65)

This matter is on referral to undersigned pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a report and recommendation. (Doc. 3 at 3) For the reasons set forth below, the undersigned Magistrate Judge recommends the Court grant the Motion in part and deny it in part without an evidentiary hearing as is set forth below.

I. BACKGROUND
A. Factual Background

In 1998, Movant was convicted of two counts of bank robbery in violation of 18 U.S.C. § 2113(a), and two counts of use of a firearm in a crime of violence (bank robbery) in violation of 18 U.S.C. § 924(c). United States v. Arnold, 182 F.3d 928 (9th Cir. 1999) (unpublished). A superseding indictment had charged Movant in Count 1 with bank robbery and taking “by force, violence and intimidation . . . from the persons and presence” of four individual tellers “approximately $16,414.00” in a Bank of America branch in Phoenix, Arizona on April 18, 1997, in violation of 18 U.S.C. § 2113(a). (Doc. 32-1 at 4) Count 2 charged that during the crime charged in Count 1, Movant “did use and carry a firearm, a pistol, during and in relation to a crime of violence” in violation of 18 U.S.C. § 924(c). (Id.) The indictment employed the same language to charge Movant in Count 3 with taking approximately $6,004.00 from two tellers in a Bank One branch in a different area of Phoenix, Arizona on April 17, 1997, also in violation of 18 U.S.C. § 2113(a). (Id. at 5) Movant was charged in Count 4 with using and carrying “a firearm, a pistol, during and in relation to a crime of violence” during the bank robbery charged in Count 3 in violation of § 924(c). (Id.)

Respondent filed an information on June 10, 1997, in which it declared that if Movant were convicted of the charges, Respondent intended to use two prior convictions to enhance Movant's sentence “to mandatory life imprisonment pursuant to Title 18, United States Code, Section 3559(c), (A)(i), (c)(2)(F) and (G), and (c)(4).” (Id. at 2) Respondent identified the prior convictions as a state conviction for second degree murder on February 19, 1976, and a federal conviction for armed bank robbery on October 4, 1993. (Id.)

Movant was convicted after a jury trial on all four counts. Arnold, 182 F.3d at 928. The Court sentenced Movant to a mandatory life sentence under the “three strikes” provision of 18 U.S.C. § 3559(c) and to a mandatory consecutive 25-year sentence under 18 U.S.C. § 924(c); further, Movant was designated as a career offender under Section 4B1.1 of the United States Sentencing Guidelines (“U.S.S.G.”) based on the 1997 offenses of bank robbery and Movant's prior convictions for federal bank robbery and state second degree murder. (Doc. 1 at 2-3, Doc. 32 at 3-4) Movant filed a direct appeal of his convictions, arguing the Court committed error on evidentiary grounds. Arnold, 182 F.3d at 928. The Ninth Circuit affirmed in May 1999. Id.

Movant filed the Motion seventeen years later in June 2016 after the Supreme Court's decision in Johnson. As described above, this matter was stayed or otherwise procedurally extended during the period in which the Supreme Court issued subsequent decisions in Dimaya and Davis.

B. Johnson and subsequent Supreme Court decisions

In Johnson, the Supreme Court considered a vagueness challenge to the “residual clause” of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). Johnson, 576 U.S. at 593. The ACCA provides more severe punishment if a defendant has three prior convictions “for a violent felony or a serious drug offense, or both.” 18 U.S.C. § 924(e). The ACCA definition of “violent felony” includes a “residual clause,” which applies to any crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). The Supreme Court held that the ACCA's “residual clause” was unconstitutionally vague and violated the Due Process Clause because it permitted imposition of an increased sentence without “ fair notice to defendants and invites arbitrary enforcement by judges.” Johnson, 576 U.S. at 597. The Court clarified that its decision did not “call into question . . . the remainder of the ACCA's definition of a violent felony.” Id. at 606. The Supreme Court subsequently held that Johnson could be applied retroactively to cases on collateral review. Welch v. United States, 578 U.S. 120, 129-30 (2016).

The Supreme Court has considered the application of its holding in Johnson in other contexts. In Beckles, the Supreme Court held that [b]ecause the advisory Sentencing Guidelines are not subject to a due process vagueness challenge, § 4B1.2(a)'s residual clause is not void for vagueness.” 137 S.Ct. at 897. In Dimaya, the Supreme Court applied its holding in Johnson to invalidate the incorporation of the residual clause found within 18 U.S.C. § 16(b) into the Immigration and Nationality Act on the basis that the language pertaining to a crime of violence was unconstitutionally vague. 138 S.Ct. at 1223. Then, in Davis, the Supreme Court held that the residual clause of 18 U.S.C. § 924(c)(3)(B) is also unconstitutionally vague. 139 S.Ct. at 2336.

II. MOVANT'S HABEAS GROUNDS

Movant's Ground 1 is that his life sentence must be vacated because after Johnson, Movant's prior conviction for second degree murder used to enhance his sentence “is not a ‘serious violent felony' because the residual clause of section 3559(c)(2)(F)(ii) is void for vagueness and the Arizona statute does not categorically qualify under the force clause[3]of section 3559(c)(2)(F)(ii) or as the enumerated offense of ‘murder (as described in section 1111)' under section 3559(c)(2)(F)(i).” (Doc. 1 at 5)

Under Ground 2, Movant asserts that his § 924(c) convictions on counts 2 and 4 for use of a firearm in a crime of violence, bank robbery, violate due process of law because after Johnson, bank robbery under § 2113 no longer qualifies as a crime of violence. (Id. at 11-12) Movant argues that he is therefore entitled to correction of his sentence. (Id. at 11)

In Ground 3, Movant asserts his...

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