Thompson v. United States

• Decision Date: 11 February 2022
• Docket Number: Civil No. 4:16cv98,Criminal No. 4:06cr31
• Citation: 585 F.Supp.3d 809
• Parties: Scott William THOMPSON, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Eastern District of Virginia

585 F.Supp.3d 809

Scott William THOMPSON, Petitioner,
v.
UNITED STATES of America, Respondent.

Civil No. 4:16cv98
Criminal No. 4:06cr31

United States District Court, E.D. Virginia, Newport News Division.

Signed February 11, 2022

Counsel for Petitioner: Frances H. Pratt.

Counsel for Respondent: Daniel T. Young.

OPINION AND ORDER

Mark S. Davis, CHIEF UNITED STATES DISTRICT JUDGE

585 F.Supp.3d 810

This matter is before the Court on Scott William Thompson's ("Petitioner") second Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, filed with the assistance of counsel. ECF No. 68. The merits of Petitioner's § 2255 motion turn on whether Petitioner was properly sentenced to a mandatory term of life imprisonment based on the finding that he has two prior "serious violent felonies." 18 U.S.C. § 3559(c)(1)(A). For the reasons explained below, the Court GRANTS Petitioner's § 2255 motion, vacates his life sentence, and ORDERS that a new sentencing hearing be scheduled in this case.

I. Factual and Procedural Background

On February 13, 2007, Petitioner pled guilty to bank robbery, in violation of 18 U.S.C. § 2113(a). On October 10, 2007, Petitioner was sentenced to a term of life imprisonment based on the sentencing judge's finding that the offense of conviction was Petitioner's third "serious violent felony" under the federal "three strikes" law. Petitioner's first two strikes consisted of one prior § 2113 federal bank robbery conviction and one state-law robbery conviction under California Penal Code § 211. Petitioner's mandatory life sentence was affirmed on appeal, United States v. Thompson, 554 F.3d 450, 451 (4th Cir. 2009), and his petition for writ of certiorari was denied by the Supreme Court, Thompson v. United States, 558 U.S. 870, 130 S.Ct. 191, 175 L.Ed.2d 120 (2009). In 2010, Petitioner filed his first § 2255 motion, which was denied by the sentencing judge, and the Fourth Circuit thereafter denied Petitioner's application for a certificate of appealability. United States v. Thompson, 454 F. Appx 223 (4th Cir. 2011).

Several years later, Petitioner obtained authorization from the Fourth Circuit to file a second § 2255 motion. ECF No. 67. After the second habeas proceeding was assigned to the undersigned judge, this Court took Petitioner's second § 2255 motion under advisement for an extended period of time "in light of the rapidly evolving legal landscape" relevant to Petitioner's procedural and merits arguments. ECF No. 88, at 2. On September 30, 2019, this Court entered an Order granting the Government's motion to dismiss the second § 2255 motion on the procedural ground that Petitioner failed to satisfy the gatekeeping requirements set forth in 28 U.S.C. § 2255(h)(2). Id. at 11. The Court, however, found that reasonable minds could differ on this procedural finding, and therefore granted a certificate of appealability, further noting that Petitioner may ultimately have a meritorious habeas claim should he overcome the necessary procedural hurdles. Id. at 12.

On April 21, 2021, the Fourth Circuit entered an Order granting an unopposed motion to remand the case to allow Petitioner to "renew and update his arguments that his 1988 California robbery conviction does not qualify as a predicate offense under 18 U.S.C. § 3559(c) ([2])(F)(i), the government to respond to those arguments, and the district court to rule on the merits of appellant's motion to vacate in the first instance." ECF No. 97, at 1 (emphasis added).¹ Following the issuance of the Fourth Circuit's mandate in June of

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2021, this Court issued a briefing order, ECF No. 100, and later granted two consent motions seeking briefing extensions, ECF Nos. 103, 106, 109. The Court has now received all supplemental briefs and a notice of supplemental authority. ECF Nos. 104, 107, 110, 111. As outlined in the parties’ filings, the sole issue before this Court is whether Petitioner's California robbery conviction "qualifies as ‘robbery’ under the enumerated-offenses clause appearing in § 3559(c)(2)(F)(i)."² ECF No. 107, at 7. If it does, as argued by the Government, Petitioner's § 2255 motion fails on the merits; if it does not, Petitioner does not qualify for a mandatory life sentence under the federal three strikes law and is entitled to a new sentencing hearing. As indicated above, this merits question is resolved in Petitioner's favor.

II. Legal Standard

As outlined by the Fourth Circuit in its opinion affirming Petitioner's life sentence on direct appeal:

The "three strikes" law requires the district court to impose a mandatory life sentence upon the conviction of a ‘serious violent felony’ if the defendant has either two prior convictions for serious violent felonies or at least one conviction for a serious violent felony and at least one conviction for a serious drug offense.

United States v. Thompson, 554 F.3d 450, 451-52 (4th Cir. 2009). "Whether a prior conviction is a ‘serious violent felony’ – a strike for three-strikes purposes – is decided by the district court at sentencing." In re Moore, 955 F.3d 384, 386 (4th Cir. 2020). Based on the statutory text, a felony can qualify as a "serious violent felony"

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under any one of three distinct provisions in the three strikes law: (1) the lengthy list of "enumerated" federal offenses, which includes robbery; (2) the "force clause" applicable to violent felonies with a maximum term of imprisonment of 10 years or more; or (3) the "residual clause" applicable to violent felonies with a maximum term of 10 years or more. 18 U.S.C. § 3559(c)(2)(F).

Here, only the first statutory provision is relevant based on the Government's concessions, and such provision provides that a "strike" applies when a defendant is convicted of "a Federal or State offense, by whatever designation and wherever committed, consisting of ... robbery (as described in section 2111, 2113, or 2118 [of Title 18]) ...." 18 U.S.C. § 3559(c)(2)(F)(i). The first listed exemplar federal robbery crime is robbery committed within the special maritime and territorial jurisdiction of the United States, 18 U.S.C. § 2111, the second is bank robbery, 18 U.S.C. § 2113, and the third is robbery of controlled substances, 18 U.S.C. § 2118. As described by the Fourth Circuit, "the essence" of all three exemplar federal robbery crimes "is a taking from another by force and violence, or by intimidation." United States v. Johnson, 915 F.3d 223, 227 (4th Cir. 2019).

Having identified the essence of the three exemplar federal robbery crimes, this Court must determine the essence of California § 211 robbery to determine whether it aligns with the federal exemplar crimes, as is required to qualify as a "strike" for three strikes purposes. California statutory robbery is defined as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." Cal. Penal Code § 211. This state-law definition of robbery is facially consistent with the federal robbery crimes listed in 18 U.S.C. §§ 2111, 2113, and 2118 as well as the "generic" understanding of robbery as recognized by a majority of states. The complicating issue, however, is the fact that, unlike the three exemplar federal statutes, the "fear" necessary to accomplish a robbery under § 211 is not limited to "fear" of bodily injury, but rather, extends to fear that property damage will result from the crime. See Cal. Penal Code § 212 (defining § 211 "fear" as including "[t]he fear of an unlawful injury to the person or property of the person robbed" or "the fear of an immediate and unlawful injury to the person or property of anyone in the company of the person robbed." (emphasis added)).

III. Discussion

A. Categorical Analysis Applies

It is undisputed that Petitioner's California robbery conviction involved the use of a firearm and a verbal threat to shoot and kill the robbery victim. However, the legal dispute before this Court does not turn on the case-specific facts, but rather, requires a "categorical" analysis detached from the facts to determine whether California § 211 robbery "counts as an enumerated robbery offense" under the federal three strikes law. Johnson, 915 F.3d at 227. Such determination requires a comparison of the elements of California § 211 robbery to the elements of the exemplar federal robbery statutes set forth in 18 U.S.C. § 3559(c) to determine whether the former "applies to conduct outside" the conduct described in the enumerated robbery offenses. Id. at 230.

B. Section 3559(c)(2)(F)(i) Should be Interpreted Broadly

The Government argues that California § 211 robbery qualifies as a strike based on the guidance provided by the Fourth Circuit in United States v. Johnson. Like the instant case, Johnson analyzed whether a prior state-law robbery offense qualified

585 F.Supp.3d 813

as a "strike" under the enumerated robbery provision of the federal three strikes law, framing the controlling inquiry as "boil[ing] down to this: Did Congress intend to include [the relevant state robbery offense] as a serious violent felony in its listing of specific crimes in § 3559(c) ?" Johnson, 915 F.3d at 228. Although the Johnson court answered that question in the affirmative with respect to New York third degree robbery, the issue in Johnson turned on a state-law "presence" requirement, not on whether the robbery could be predicated on property threats.

While the holding in Johnson does not directly resolve the question before this Court, the guidance provided therein both establishes the framework this Court must apply and makes clear that the three strikes law, as applicable to state robbery crimes, should be interpreted broadly. As explained in Johnson, when Congress was drafting the enumerated crimes provision it "faced no small task in writing the ... law in a way that would incorporate the contours and nuances of myriad state criminal codes," and...