Knight v. United States

• Decision Date: 19 February 2015
• Docket Number: Case No. 1:13-cv-00460-EJL,Case No. 1:09-cr-00081-EJL
• Court: U.S. District Court — District of Idaho
• Parties: DUSTY JOHN KNIGHT, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

DUSTY JOHN KNIGHT, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Case No. 1:13-cv-00460-EJL

Case No. 1:09-cr-00081-EJL

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

February 19, 2015

MEMORANDUM DECISION AND ORDER

This matter is before the Court on a motion by Dusty John Knight ("Knight") pursuant to 28 U.S.C. § 2255, or, alternatively, a writ of coram nobis pursuant to 28 U.S.C. § 1651(a), to vacate and enter a new sentence that does not include the USSG § 2K2.1(a) crime of violence enhancement entered in Case No. 1:09-cr-00081 following Knight's guilty plea. (Dkt. 1.)¹ The Government has filed a motion to dismiss Knight's petition (Dkt. 6) and Knight has responded (Dkt. 9). Having reviewed the record, including the record in the underlying criminal case, the Court will deny Knight's motion.

PROCEDURAL BACKGROUND

On August 25, 2009, Knight entered a plea of guilty to unlawful possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and forfeiture of the firearm in violation of 18 U.S.C. § 924(d), 26 U.S.C. § 5872, and 28 U.S.C. § 2461(c). Knight's plea was pursuantto a written Rule 11 plea agreement between Knight and the Government. (Dkt. 6-1.) Knight's plea agreement contained the following waiver of appeal and 28 U.S.C. § 2255 rights:

In exchange for the Government's concessions in this Plea Agreement, and except as provided in subparagraph B, the defendant waives to the full extent of the law any right to appeal or to collaterally attack the conviction, entry of judgment, sentence (including any restitution or forfeiture order), or entry of sentence. This waiver includes appeals and collateral attacks based on any source whatever, including but not limited to:

1. 28 U.S.C. § 1291 (judgment and conviction);

2. 18 U.S.C. § 3553 and 3742(a), and 28 U.S.C. § 1291 (sentencing);

3. 28 U.S.C. §§ 2241-2255 (habeas corpus).

The defendant acknowledges and agrees that this waiver shall result in the dismissal of any appeal or collateral attack the defendant might file challenging the defendant's conviction or sentence in this case. Further, if the defendant files a notice of appeal or a habeas petition, notwithstanding this Agreement, the defendant agrees that this case shall, upon motion of the Government, be remanded to the District Court to determine whether the defendant is in breach of this Agreement, and, if so, to permit the Government to withdraw from the Plea Agreement.

If the defendant believes the Government has not fulfilled its obligations under this Agreement, the defendant will object at the time of sentencing; otherwise the objections will be deemed waived.

Notwithstanding [the above] the defendant shall retain the right to file one direct appeal under the following circumstances only:

1. the sentence imposed by the District Court exceeds the statutory maximum;

2. the District Court arrived at an advisory Sentencing Guidelines range by applying an upward departure under Chapter 5K of the Guidelines;

3. the District Court exercised its discretion under 18 U.S.C. § 3553(a) to impose a sentence which exceeds the advisory Sentencing Guidelines range as determined by the District Court.

Notwithstanding [defendant's appeal waiver] the defendant shall retain the right to file one habeas petition (motion under 28 U.S.C. § 2255) only if the defendant believes that the defendant received ineffective assistance of counsel based solely on information not known to the defendant at the time the District Court imposed the sentence and which, in the exercise of reasonable diligence, could not have been known by the defendant at that time.

(Dkt. 6-1, pp. 12-13.)

During Knight's August 25, 2009 change of plea hearing, the Court specifically addressed the aforementioned waiver provision of the plea agreement, noting:

You have agreed to waive any and all appealable rights, post-conviction writs or other defenses that you otherwise might have raised except for those that are specifically set forth in Part VII of this agreement. Those are the only exceptions. Are you aware of that?

(Dkt. 6-2, pp. 16-17.)

Knight replied:

Yes, sir.²

(Id.)

Following the change of plea hearing, a Presentence Investigation Report ("PSR") was prepared. The Government filed an objection to the report on October 28, 2009, contesting the PSR's failure to increase the Defendant's base offense level, pursuant to USSG § 2K2.1(a)(2), because Knight had two felony convictions for the crime of burglary, one in Arizona and one in Idaho. (1:09-cr-00081, Dkt. 17.) Because he had two previous felony convictions for the violent crime of burglary, the Government argued Knight's base offense level should be adjusted from 14 to 24. (Id., p. 12.) Knight responded, asserting that his Idaho conviction could not be considered a crime of violence under binding Ninth Circuit precedent because it did not require unlawful entry and was, therefore, missing anelement of generic burglary.³ (1:09-cr-00081, Dkt. 18.) As such, Knight suggested the Court could not rely upon the modified categorical approach to enhance Knight's sentencebased on the Idaho conviction.⁴ (Id.)

The Court granted the Government's objections and assigned Knight a base offense level of 24. The Court sentenced Knight to a term of 84 months on November 17, 2009. (1:09-cr-00081, Dkt. 24.) Knight did not appeal the Court's sentence. The one year statute of limitations period provided under 28 U.S.C. § 2255(f)(1) accordingly began to run fourteen days after the November 17, 2009 entry of judgment, when the conviction became final due to Knight's failure to file a direct appeal. Knight did not file the instant motion until nearly four years later, on October 23, 2013.

The sole argument raised in Knight's motion is that this Court erred in calculating his advisory guideline range. Knight claims the Court erred in increasing his offense level by four points as a result of finding that his Idaho burglary conviction qualified as a crime of violence under the modified categorical approach. In his motion, Knight suggests he is entitled to relief under 28 U.S.C. § 2255, or, in the alternative, under 28 U.S.C. § 1651(a) through a writ of error coram nobis, because the Supreme Court ruled, in June 2013, that sentencing courts may not apply the modified categorical approach when the prior crime of which the defendant was convicted has a single, indivisible set of elements. Descamps,133 S.Ct. at 2282. Because Idaho's statute is indivisible, but the modified categorical approach was nonetheless used to enhance his sentence, Knight suggests failing to enter a new sentence that does not include the USSG § 2K2.1(a) crime of violence enhancement for the Idaho conviction would constitute a miscarriage of justice. (Dkt. 9, pp. 3-4.)

STANDARDS OF LAW

1. 28 U.S.C. § 2255

Title 28 U.S.C. § 2255 provides four grounds under which a federal court may grant relief to a federal prisoner who challenges the imposition or length of his or her incarceration: (1) "that the sentence was imposed in violation of the Constitution or laws of the United States;" (2) "that the court was without jurisdiction to impose such sentence;" (3) "that the sentence was in excess of the maximum authorized by law;" or (4) "that the sentence is otherwise "subject to collateral attack." 28 U.S.C. § 2255(a). Although there are four categories, the range of claims which may be raised in § 2255 motion are narrow. United States v. Wilcox, 640 F.2d 970, 972 (9th Cir. 1981). A motion filed pursuant to § 2255 must allege specific facts which, if true, would entitle the individual to relief. United States v. Rodrigues, 347 F.3d 818, 824 (9th Cir. 2003) (quoting United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir. 1996)).

Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that a federal district court judge must dismiss a § 2255 motion "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief." If the Court does not dismiss pursuant to Rule 4(b), the Court shallorder the Government to "file an answer, motion, or other response within a fixed time, or to take other action the judge may order." Id.

The Court may dismiss a § 2255 motion at other stage of the proceedings, such as pursuant to a motion by respondent, after consideration of the answer and motion, or after consideration of the pleadings and an expanded record. See Advisory Committee Notes following Rule 8 of the Rules Governing Section 2254 Proceedings incorporated by reference into the Advisory Committee Notes following Rule 8 of the Rules Governing Section 2255 Proceedings.

If the Court does not dismiss the motion, it proceeds to a determination as to whether an evidentiary hearing is warranted. Although the burden is on the movant to establish entitlement to an evidentiary hearing, the burden is "fairly lenient" and a hearing is warranted "unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." Rodrigues, 347 F.3d at 824. Stated another way, an evidentiary hearing is warranted if "the movant has made specific factual allegations that, if true, state a claim on which relief could be granted." United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984). Conversely, no hearing is required if the allegations, "when viewed against the record, do not state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal." Id. (citations omitted).

2. Coram Nobis

Knight contends that, if the Court concludes he is not entitled to relief under § 2255, the Court should grant Knight relief under 28 U.S.C. § 1651(a), through a writ of errorcoram nobis. The Supreme Court has held that a writ of error coram nobis is an "extraordinary remedy" available only when the challenged conviction is one that has been obtained as a result of errors "of the most fundamental character" that have "rendered the...