Nakai v. United States
| Decision Date | 11 August 2021 |
| Docket Number | CV-16-08310-PCT-DGC,CR-01-01072-01-PCT-DGC |
| Parties | Gregory Nakai, Petitioner, v. United States of America, Respondent. |
| Court | U.S. District Court — District of Arizona |
Movant Gregory Nakai filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Doc. 3 at 3-11.[1] Magistrate Judge John Boyle recommends that: (1) Nakai's convictions on counts 6 and 18 be vacated; (2) his motion otherwise be denied; and (3) a certificate of appealability be granted. Doc. 48 (“R&R”). Nakai objects. Doc. 49. The Court will adopt the R&R in part, grant Nakai's motion in part, and grant a certificate of appealability.[2]
In 2003, a jury convicted Nakai on each count in an 18-count indictment arising from a double murder on the Navajo Reservation in August 2001. Doc. 6 at 2-4. The indictment charged Nakai with nine substantive offenses and nine corresponding violations of 18 U.S.C. §§ 924(c) and 924(j). Section 924(c)(3) imposes extended prison sentences for use of a firearm in connection with crimes of violence, and § 924(j) requires a sentence of death or life in prison if § 924(c) applies and the underlying crime is murder as defined in 18 U.S.C. § 1111. See CR Doc. 280 at 1-2; 18 U.S.C. §§ 924(c)(3), 924(j)(1), 1111(a). Nakai's nine § 924(c) convictions resulted in 720 months of incarceration following six consecutive life terms, all in addition to the concurrent life sentences he received for the nine substantive offenses. CR Doc. 280 at 2.
For § 924(c)(3) and § 924(j) to apply in Nakai's case, the jury needed to find that he used a firearm in a “crime of violence.” 18 U.S.C. § 924(c), (j). The statute defines a “crime of violence” as:
18 U.S.C. § 924(c)(3). Subsection (c)(3)(A) is commonly known as the “force” or “elements” clause, and will be referred to in this order as the “force clause.” Subsection (c)(3)(B) commonly is called the “residual clause.” See United States v. Davis, 139 S.Ct. 2319, 2324 (2019).
In 2015, the Supreme Court held that a similar residual clause found in the definition of “violent felony” in the Armed Career Criminal Act (“ACCA”), 18 U.S.C § 924(e)(2)(B), was unconstitutionally vague. Johnson v. United States, 576 U.S. 591 (2015) (“Johnson II”). The Supreme Court later held that Johnson II “announced a substantive rule that has retroactive effect in cases on collateral review, ” allowing defendants to invoke Johnson II to vacate their sentences in federal collateral review proceedings. See Welch v. United States, 136 S.Ct. 1257, 1268 (2016). In June 2019, the Supreme Court extended Johnson II to the definition of a “crime of violence” in § 924(c)(3)(B), holding that the residual clause was also unconstitutionally vague. Davis, 139 S.Ct. at 2324.
Nakai's first § 2255 motion, filed in October 2006, was denied in August 2007. See Nakai v. United States, Case No. 3:06-cv-02394-FJM-JCG, Doc. 2. In 2016, after Johnson II was decided, the Ninth Circuit granted Nakai's application to file a second or successive § 2255 motion. Doc. 3; see also 28 U.S.C. § 2255(h). The motion alleged, among other things, that eight of Nakai's § 924 convictions were unconstitutional under Johnson II. Doc. 3-3 at 7, 10. The government filed a motion to dismiss Nakai's motion, and in December 2017 Judge Boyle issued an R&R recommending that the motion be granted. Doc. 13. In April 2018, the Court dismissed the majority of Nakai's § 2255 claims, but held that Nakai had properly raised the issue of whether some of his predicate offenses were no longer valid grounds for a § 924 conviction under Johnson II. See Doc. 17 at 4. The Court remanded the case for further briefing on the merits. Id. at 4.
Judge Boyle stayed the case in September 2018 to await resolution of various cases before the Ninth Circuit and Supreme Court. Doc. 48 at 5. In October 2020, Judge Boyle lifted the stay and ordered additional briefing on whether the predicate offenses for the § 924 convictions remained “crimes of violence” after the Supreme Court's decision in Davis. Id. In December 2020, after further supplemental briefing (Docs. 46-47), Judge Boyle issued an R&R recommending that Nakai's § 2255 motion be granted with respect to counts 6 and 18 - Nakai's § 924 convictions based on kidnapping - and be denied with respect to Nakai's remaining § 924 convictions because the predicate offenses constitute crimes of violence. Doc. 48 at 1-2. Judge Boyle further recommended that a certificate of appealability be granted because reasonable jurists could debate his conclusions. Id. at 14. Nakai objects that the following § 924 convictions are based on predicate offenses that do not constitute crimes of violence: (1) first-degree murder (Counts 2 and 8); (2) felony murder (Counts 4, 12, and 16); and (3) carjacking (Count 10). See Doc. 49.
This Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The Court “must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). The Court is not required to conduct “any review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985).
Nakai has not objected to Judge Boyle's recommendation on Counts 6 and 18 (the § 924 convictions based on kidnapping) or Count 14 (the § 924 conviction based on robbery).[3] The Court will address Nakai's specific objections below, accept Judge Boyle's recommendations with respect to Counts 2, 8, and 10 (the § 924 convictions based on first-degree murder and carjacking), and grant Nakai's § 2255 motion with respect to Counts 4, 12, and 16 (the § 924 convictions based on felony murder).
Congress has erected a high bar for second or successive § 2255 motions. Nakai's motion must “rel[y] on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2244(b)(2); see also 28 U.S.C. § 2255(h). As a threshold matter, the Court must determine whether the holding in Davis - that § 924(c)(3)'s residual clause is void for vagueness - applies retroactively to cases on collateral review.[4]
The Supreme Court and Ninth Circuit have not addressed the issue, but other circuits have concluded that Davis applies retroactively. See United States v. Reece, 938 F.3d 630, 635 (5th Cir. 2019) (); United States v. Bowen, 936 F.3d 1091, 1097 (10th Cir. 2019) (); In re Hammoud, 931 F.3d 1032, 1031 (11th Cir. 2019) (“[F]or purposes of § 2255(h)(2), we conclude that, taken together, the Supreme Court's holdings in Davis and Welch “necessarily dictate” that Davis has been made retroactively applicable to criminal cases that became final before Davis was announced.”) (internal quotation marks and citations omitted). The Court agrees with these cases. Davis applies retroactively to this case, particularly in light of the Supreme Court's decision in Welch. Because the residual clause in § 924(c)(3)(B) is unconstitutionally vague, Nakai's offenses can constitute crimes of violence only under the force clause in § 924(c)(3)(A).
To determine whether a crime qualifies as a crime of violence, courts use a categorical approach. United States v. Calvillo-Palacios, 860 F.3d 1285, 1288 (9th Cir. 2017). Borden v. United States, 141 S.Ct. 1817, 1822 (2021). Here, the relevant inquiry is the language of the force clause - whether the offense necessarily involves the “use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 924(c)(3)(A). “If any - even the least culpable - of the acts criminalized do not entail that kind of force, the statute of conviction does not categorically match the federal standard, and so cannot serve as” a predicate offense for purposes of § 924(c)(3)(A). Borden, 141 S.Ct. at 1822.
The Supreme Court has provided importance guidance on application of the categorical approach to statutory language like the force clause in § 924(c)(3)(A). In Leocal v. Ashcroft, 543 U.S. 1 (2004), the Court held that negligence cannot give rise to a crime of violence under language virtually identical to the force clause, which requires “a higher degree of intent than negligent or merely accidental conduct.” Id. at 9. In Borden, 141 S.Ct. 1817, the Court held that recklessness cannot satisfy the essentially identical definition of “violent felony” found in 18 U.S.C. § 924(e)(2)(B). The reasoning of these cases will become important to the decision in this case, as discussed below.
Nakai moves to vacate Counts 2 and 8, the § 924 counts based on his predicate offense of...
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