Gaines v. United States

• Decision Date: 03 April 2017
• Docket Number: Case Nos. 2:16-cv-07067-CAS, 2:99-cr-00257-CAS.
• Citation: 248 F.Supp.3d 959
• Court: U.S. District Court — Central District of California
• Parties: Anthony Seids GAINES, Plaintiff, v. UNITED STATES of America, Defendant.

248 F.Supp.3d 959

Anthony Seids GAINES, Plaintiff,

v.UNITED STATES of America, Defendant.

Case Nos. 2:16-cv-07067-CAS, 2:99-cr-00257-CAS.

United States District Court, C.D. California.

Signed April 3, 2017

Brianna Fuller Mircheff, Federal Public Defenders Office, Los Angeles, CA, for Plaintiff.

Assistant 2241-2255 US Attorney LA-CR, Ashwin Janakiram, SAUSA—Office of the US Attorney General Crimes Section, Los Angeles, CA, for Defendant.

ORDER

CHRISTINA A. SNYDER, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION AND BACKGROUND

On August 19, 1999, after a jury trial before Judge Lourdes G. Baird, Anthony Seids Gaines was convicted of: (1) one count of conspiring to commit a Hobbs Act robbery, in violation of 18 U.S.C. § 1951 ; (2) four counts of committing a Hobbs Act robbery, in violation of Section 1951 ; and (3) four counts of using and carrying a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c). Dkt. 1 ("Mot.") at 1; United States v. Gaines et al., 2:99-cr-00257 (C.D. Cal. Aug. 19, 1999) ("Criminal Case"), dkt. 231. Consequently, on December 21, 1999, the court sentenced Gaines to 210 months of imprisonment for each of the Hobbs Act violations (counts 1, 2, 4, 6, 8) to be served concurrently, plus an additional 780 months for violations of 18 U.S.C. § 924(c) (including 60 months for using and carrying a firearm to commit a crime of violence, count 3, and 240 months for each of the three remaining Section 924(c) violation, counts 5, 7, 9). Criminal Case dkts. 291, 292. In total, Gaines was sentenced to 990 consecutive months of imprisonment. Id.

On September 5, 2002, Gaines filed a petition under 28 U.S.C. § 2255, raising issues that do not arise in the instant matter. United States v. Anthony S Gains, 2:02-cv-06917-CAS ("First Habeas Petition"), dkt. 1. The Court denied Gaines's petition on November 27, 2002. First Habeas Petition dkt. 3.

On May 6, 2016, Gaines filed the instant motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. See Mot. On September, 16 2016, the Ninth Circuit authorized Gaines to file a second or successive Section 2255 motion. Dkt. 3. On September 20, 2016, Gaines's Section 2255 motion was manually filed in this Court. Dkt. 4. On November 7, 2016, the government filed its opposition to Gaines's motion. Dkt. 9. ("Opp'n"). On October 26, 2016, Gaines filed his reply. Dkt. 11 ("Reply").

II. LEGAL STANDARD

A prisoner may move the court to vacate, set aside or correct his sentence if he can show "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[.]" 28 U.S.C. § 2255(a).

III. DISCUSSION

In the instant Section 2255 motion, Gaines argues that, in the wake of Johnson v. United States, ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (" Johnson II"), a Hobbs Act robbery is no longer a crime of violence under Section 924(c) and, therefore, his 780-month sentence for carrying and using a firearm in commission of a crime of violence is unconstitutional. The government argues that Gaines is not entitled to relief under Section 2255 because: (a) Gaines's claims are procedurally defaulted; (b) Gaines's motion is time-barred; and (c) Gaines's motion fails on the merits because (i) Johnson II does not apply to Section 924(c), and (ii) Hobbs Act robbery remains a crime of violence under Section 924(c).

A. Johnson v. United States

Federal law forbids certain people—convicted felons, persons committed to mental institutions, and drug users—to ship, possess, and receive firearms. 18 U.S.C. § 922(g). If a violator has three or more earlier convictions for a "serious drug offense" or a "violent felony," the Armed Career Criminal Act ("ACCA") increases her prison term to a minimum of 15 years. The Act defines "violent felony" as:

any crime punishable by imprisonment for a term exceeding one year ... that—

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B) (emphasis added). The closing words of this definition, italicized above, are known as the ACCA's residual clause. Johnson II, 135 S.Ct. at 2556 (2015).

On June 26, 2015, the Supreme Court held in Johnson II that imposing an increased sentence under the ACCA's residual clause violates due process. 135 S.Ct. at 2557. On October 19, 2015, in Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), the Ninth Circuit extended Johnson II to a materially identical residual clause in 18 U.S.C. § 16, which defined a "crime of violence" for the purposes of identifying offenses that merit deportation of non-citizen defendants under the Immigration and Nationality Act. On April 18, 2016, in Welch v. United States, ––– U.S. ––––, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), the Supreme Court held that Johnson II announced a new substantive rule of constitutional law that applies retroactively on collateral review. Welch, 136 S.Ct. at 1264–68.

B. Gaines Has Not Procedurally Defaulted

The government argues that Gaines's claim is procedurally defaulted because he failed to raise it on appeal. Opp'n at 6–8. "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, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (quotation marks and citations omitted).

Cause exists when a claim is "novel." See Reed v. Ross, 468 U.S. 1, 15, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984). A claim could be novel where a Supreme Court decision: (1) "explicitly overrule[s] one of th[e] Court's precedents"; (2) "may overtur[n] a longstanding and widespread practice to which th[e] Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved"; or (3) "disapprove[s] a practice that th[e] Court arguably has sanctioned in prior cases." Id. at 17, 104 S.Ct. 2901 (quotation marks omitted). As the Supreme Court itself recognized, Johnson II expressly overruled Supreme Court precedent. See Johnson II, 135 S.Ct. at 2563 ("We hold that imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution's guarantee of due process. Our contrary holdings in James [v. United States, 550 U.S. 192 [127 S.Ct. 1586, 167 L.Ed.2d 532] (2007) ] and Sykes [v. United States, 564 U.S. 1 [131 S.Ct. 2267, 180 L.Ed.2d 60] (2011) ] are overruled."). Thus, Gaines's claim is "novel" and he has established cause for failing to raise this argument on appeal.

To show prejudice, Gaines must "demonstrate[e] not merely that the errors ... [in the proceedings] created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire [proceedings] with error of constitutional dimensions.’ " United States v. Braswell, 501 F.3d 1147, 1150 (9th Cir. 2007) (quotation marks omitted). Thus, Gaines must show a "reasonable probability" that, without the error, the result of the proceedings would have been different. Strickler v. Greene, 527 U.S. 263, 289, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). Gaines argues that he was prejudiced because his Section 924(c) conviction added 780 months to his sentence. Reply at 7. The Court agrees. If the court mistakenly treated a Hobbs Act robbery as a crime of violence, there is a reasonable probability that, but for the error, Gaines's sentence would have been different. The Court thus finds that Gaines has established prejudice.

Additionally, courts have concluded that Section 2255 motions based on a Johnson II claim are not procedurally defaulted because such claims were not "reasonably available" prior to Johnson II. See United States v. Garcia, 202 F.Supp.3d 1109, 1114–15 (N.D. Cal. 2016) ; Alvarado v. United States, No. 16-cv-4411-GW, 2016 WL 6302517, *3 (C.D. Cal. Oct. 14, 2016) ; United States v. Kinman, No. 16-cv-1360-JM, 2016 WL 6124456, *4 (S.D. Cal. Oct. 20, 2016), appeal docketed No. 16-56568 (9th Cir. Oct. 21, 2015). The Court concludes that Gaines has overcome his failure to raise his instant arguments on appeal and may file the instant motion.¹

C. Gaines's Motion Is Timely

The government asserts that Gaines's Section 2255 motion is untimely. Opp'n at 8–14. The limitations period for filing a Section 2255 motion runs "from the latest of (1) the date on which the judgment of conviction becomes final ... [or] (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." 28 U.S.C. § 2255(f). The government argues that Gaines did not bring his motion within one year of October 1, 2001, when his conviction became final, and that "the right recognized in Johnson II has not been made retroactively applicable to Section 924(c) cases on collateral review." See Opp'n at 9–10. To determine whether Gaines's motion is timely, the Court must first determine whether Johnson II, which applies retroactively to the ACCA, also applies to Section 924(c).

Section 924(c) authorizes the imposition of enhanced penalties on a defendant who uses or carries a firearm while committing a "crime of violence." 18 U.S.C. § 924(c)(1). The statute defines "crime of violence" as "an offense that is a felony" and:

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another; or

(B) that by its nature, involves a substantial risk that physical force against the person or property of

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