Ernst v. United States

• Decision Date: 13 November 2017
• Docket Number: Case No. 6:17–cv–00839–AA, 6:10–cr–60109–AA
• Citation: 293 F.Supp.3d 1242
• Parties: Daniel Carl ERNST, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of Oregon

293 F.Supp.3d 1242

Daniel Carl ERNST, Petitioner,

v.UNITED STATES of America, Respondent.

Case No. 6:17–cv–00839–AA, 6:10–cr–60109–AA

United States District Court, D. Oregon, Eugene Division.

Signed November 13, 2017

Frank R. Papagni, Jr., United States Attorney's Office, Eugene, OR, for Respondent.

OPINION AND ORDER

AIKEN, Judge:

Pursuant to 28 U.S.C. § 2255, petitioner Daniel Carl Ernst, a federal prisoner, moves to vacate, set aside, or correct his sentence. He argues that his sentence was based on a mandatory minimum that was erroneously applied to him and that his trial and sentence violated his rights under the United States Constitution and the Speedy Trial Act. For the reasons set forth below, petitioner's § 2255 motion is granted and the judgment in this case is vacated pending resentencing.

BACKGROUND

On September 15, 2010, petitioner was indicted on felon-in-possession and drug trafficking charges. On February 23, 2012, I granted petitioner's request to proceed pro se , and appointed his former defense lawyer as standby counsel. On April 3, 2012, trial began. After the jury was sworn, petitioner and the government gave opening statements. When petitioner did not return after the lunch break, I dismissed the jury for the day and issued a bench warrant for petitioner's arrest.

Four days later, petitioner was arrested. Magistrate Judge Coffin ordered him detained. On April 11, 2012, I granted petitioner's motion for a mistrial and ordered a competency examination. Based on the results of that examination, I found petitioner was competent to stand trial and to continue to represent himself.

On November 19, 2013, a second trial began. After the jury was sworn, court recessed for lunch. At that point, petitioner and the government informed me they had agreed to a stipulated-facts trial on the first charge in the indictment only. Petitioner signed a written waiver of his right to a jury trial. Based on the parties' stipulations, I found petitioner guilty on the first charge, felony possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Pursuant to the parties' agreement, the government stated it intended to dismiss the remaining charges at sentencing.

On May 14, 2014, I sentenced petitioner to fifteen years' imprisonment, to be followed by five years' supervised release. Adopting the Presentence Report in full, I concluded that fifteen years' imprisonment was the statutory mandatory minimum because petitioner had three previous state-law convictions for manufacture or delivery of a controlled substance, a "serious drug offense" within the meaning of the Armed Career Criminals Act ("ACCA").¹ The government then dismissed the remaining charges.

On appeal, petitioner was represented by counsel. He challenged his conviction and sentence on several grounds, arguing that his waiver of his Sixth Amendment right to counsel was invalid, that the guns discovered during a 2006 search were found pursuant to an illegal search warrant, that his state drug convictions were not serious drug offenses under the ACCA because the Oregon law does not impose a statutory maximum of ten years or more, and that his conviction violated the Commerce Clause. United States v. Ernst , 623 Fed.Appx. 333, 333–35 (9th Cir. 2015) (unpublished).

The Ninth Circuit rejected each of those arguments. Id. On June 8, 2016, the Supreme Court denied petitioner's request for review, rendering his conviction and sentence final on direct appeal. Ernst v. United States , ––– U.S. ––––, 136 S.Ct. 2426, 195 L.Ed.2d 793 (2016).

On May 30, 2017, petitioner filed the instant petition to vacate or correct his sentence. About a month later, he filed a motion to appoint counsel. I denied the request for counsel, finding that petitioner had not met the standards under 18 U.S.C. § 3006A(a)(2)(B). I did, however, grant petitioner's request for an extension of time to file his reply. The reply was initially due September 7, 2017; in a letter dated September 8, 2017, petitioner asked for a seven day extension. I granted him an eighteen day extension and set a new deadline of September 25, 2017. Although petitioner's reply was not docketed until October 2, 2017, he states that he mailed it on September 25. Accordingly, I have considered all arguments made in the reply brief.²

DISCUSSION

In his § 2255 petition, petitioner asserts five claims for relief.³ His first, second, and fourth claims concern the use of his prior Oregon convictions as predicate offenses under the ACCA. His third claim is a hodgepodge of sovereign citizen and constitutional arguments, grouped together as violations of "Common–Law Due Process." Motion to Vacate or Correct Sentence Under 28 U.S.C. § 2255 6. His fifth claim is for violation of his rights under the Speedy Trial Act. His first claim is the only one that requires sustained consideration. Accordingly, I first address that claim and then consider the remaining claims.

I. First Claim for Relief: Sandoval and the ACCA

In his first claim for relief, petitioner argues that the ACCA's mandatory minimum was improperly applied to him because Sandoval v. Sessions , 866 F.3d 986 (9th Cir. 2017),⁴ makes clear that his prior convictions under Oregon law are not qualifying predicate offenses. In Sandoval , the petitioner, a lawful permanent resident of the United States, sought review of a decision of the Board of Immigration Appeals that he was subject to deportation because his conviction for delivery of a controlled substance under Oregon law qualified as an "aggravated felony" under 8 U.S.C. § 1227(a)(2)(A)(iii). Id. at 988. The Ninth Circuit granted review and remanded the BIA's decision, holding that the petitioner's conviction did not qualify as an aggravated felony because the Oregon statute was not a categorical match for a "drug trafficking crime" under 8 U.S.C. § 1101(a)(43)(B). Id. at 993. Specifically, the court concluded that an individual could be convicted under the Oregon statute for merely soliciting delivery of a controlled substance, as distinct from actually delivering a controlled substance. Id. at 989–92. That rendered the state statute categorically overbroad compared to the federal comparator, which does not penalize solicitation of delivery as a felony. Id. at 993.

Like the immigration statute at issue in Sandoval , the ACCA imposes certain consequences based on categorization of prior convictions. Specifically, the ACCA mandates a fifteen-year minimum sentence in cases where a defendant convicted of a firearms offense has three prior convictions for "a violent felony or a serious drug offense, or both." 18 U.S.C. § 924(e)(1). As noted, at petitioner's sentencing, I concluded the ACCA's mandatory minimum applied to petitioner based on three convictions in Oregon state court. Each of those convictions was for manufacture or delivery of a controlled substance, in violation of the same statute at issue in Sandoval. Petitioner argues that Sandoval 's holding that the Oregon statute is overbroad applies in the ACCA context as well. He contends that, due to that overbreadth, his convictions under Oregon law are not categorically "serious drug offense[s]" within the meaning of the ACCA.

A. Preliminary Matters

The government suggests several reasons why this Court lacks authority to consider petitioner's first claim for relief. I begin by considering whether any of those arguments has merit.

The government first argues that petitioner's challenge to the categorization of his prior convictions as serious drug offenses is barred by the relitigation doctrine. That doctrine provides that "[w]hen a [petitioner] has raised a claim and has been given a full and fair opportunity to litigate it on direct appeal, that claim may not be used as a basis for a subsequent § 2255 petition." United States v. Hayes , 231 F.3d 1132, 1139 (9th Cir. 2000). But the relitigation doctrine does not bar this claim. Petitioner did not have a full and fair opportunity to argue that his prior convictions were not serious drug offenses under Sandoval because Sandoval was not decided until January 2017, more than six months after his conviction became final on direct review.

Ordinarily, the failure to raise a claim on direct review bars a petitioner from asserting that same claim in a § 2255 petition unless he can show cause and prejudice for the procedural default. United States v. Withers , 638 F.3d 1055, 1064 (9th Cir. 2011). But procedural default is an affirmative defense that can be waived by the government. McDaniels v. Kirkland , 813 F.3d 770, 775 n.3 (9th Cir. 2015). The government has not argued that petitioner's Sandoval claim is procedurally defaulted. Accordingly, petitioner is not obligated to establish cause and prejudice.

The government next contends Sandoval cannot be applied retroactively on collateral review under the rule set out in Teague v. Lane , 489 U.S. 288, 311, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). But Teague is inapplicable to this case for two reasons. First, Teague limits only the retroactive application of new constitutional rules. See Reina–Rodriguez v. United States , 655 F.3d 1182, 1188 (9th Cir. 2011) ("If the new rule is not founded on constitutional concerns, it does not implicate Teague. "). Sandoval was not a constitutional decision; it was a statutory interpretation decision. See Ezell v. United States , 778 F.3d 762, 766–67 (9th Cir. 2015) (holding that decisions employing the categorical approach are statutory interpretation cases, even though the analysis often implicates constitutional principles). Second, Teague restricts retroactive application of procedural rules, not substantive ones. When a decision "alter[s] the conduct that substantively qualifies" as a predicate offense "under the categorical approach," it announces a substantive rule. Reina–Rodriguez , 655 F.3d at 1189. Sandoval therefore may be retroactively applied on collateral review.⁵

Finally, the government argues that this Court lacks authority to consider...