United States v. Colasanti

• Decision Date: 26 September 2017
• Docket Number: No. 6:96–cr–60132–MC,6:96–cr–60132–MC
• Citation: 282 F.Supp.3d 1213
• Parties: UNITED STATES of America, Plaintiff/Respondent, v. James Chris COLASANTI, Defendant/Petitioner.
• Court: U.S. District Court — District of Oregon

282 F.Supp.3d 1213

UNITED STATES of America, Plaintiff/Respondent,

v.James Chris COLASANTI, Defendant/Petitioner.

No. 6:96–cr–60132–MC

United States District Court, D. Oregon.

Signed September 26, 2017

William E. Fitzgerald, Frank R. Papagni, Jr., United States Attorney's Office, Eugene, OR, for Plaintiff/Respondent.

OPINION AND ORDER

Michael J. McShane, United States District JudgePetitioner, James Chris Colasanti, is currently serving a 188–month sentence imposed pursuant to § 4B1.2(a)(2) of the United States Sentencing Guidelines ("Guidelines").¹ On June 23, 2016, he filed a motion to vacate or correct his sentence under 28 U.S.C. § 2255, arguing that the principles set forth in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), render the language found in the mandatory Guidelines provision governing his sentence constitutionally deficient. The Government has since moved to dismiss his motion. Because the court in Johnson did not recognize a new right that would apply to the language of the mandatory Guidelines, Petitioner's motion is DENIED as untimely. The Government's motion is GRANTED.

BACKGROUND

In 1996, Petitioner pled guilty to three counts of federal unarmed bank robbery in violation of 18 U.S.C. § 2113(a). J. and Commitment 1. The presentence report determined that, under the then-mandatory Guidelines, his bank robbery offense and two prior convictions for California robbery qualified as "crimes of violence" pursuant to § 4B1.2(a)(2) and that he was a Career Offender under § 4B1.1. Presentence Report ¶ 53. The district court applied the Career Offender enhancement and sentenced Petitioner to 188 months' imprisonment—the upper end of his mandatory 151 to 188–month Guidelines range. J. and Commitment 1. Without the career offender finding, Petitioner's range would have been 120 to 150 months. Presentence Report ¶ 52. Petitioner is currently serving his sentence in federal prison and has a projected release date of November 3, 2017. Mem. in Supp. of Def.'s Mot. to Vacate or Correct Sentence 3.

Petitioner now moves the Court to vacate or correct his sentence pursuant to 28 U.S.C. § 2255. Def.'s Mot. to Vacate or Correct Sentence 1. He contends that when the Supreme Court struck down the residual clause of the Armed Career Criminals Act ("ACCA") as void for vagueness in Johnson , it recognized a new right retroactively applicable to sentences imposed under the identically-worded residual clause of the mandatory Guidelines. Id. at 3–4. Applying this right to the Guidelines, he argues that the residual clause is now deemed unconstitutionally vague and, as such, his Career Offender designation violates his due process rights. Id. Without the residual clause, he maintains, his convictions for federal bank robbery and California robbery no longer qualify as crimes of violence under § 4B1.2(a) and the protections of § 2255 entitle him to relief from his classification as a Career Offender. Id. at 5.

The Government opposes Petitioner's motion and seeks its dismissal on two grounds. Gov't Mot. to Dismiss and Answer 3–5. First, it contends that the right recognized in Johnson does not apply to the residual clause of the mandatory Guidelines. Id. at 3. Instead, Johnson is limited to sentences imposed under the ACCA. Id. Second, the Government argues that, even if there is a "colorable argument" that Johnson does apply to the mandatory Guidelines, the residual clause is still constitutional as applied to the facts of this case. Id. at 4–5. In particular, it asserts that the due process concerns animating the Supreme Court's decision in Johnson are absent because robbery is explicitly named as a crime of violence in the application note to the Career Offender provision. Id.

DISCUSSION

Under 28 U.S.C. § 2255, a prisoner may move to have his sentence vacated or corrected if it "was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a). A motion pursuant to § 2255 must be filed within one year from the date on which a petitioner's conviction becomes final, unless an exception applies. Id. § 2255(f)(1). Petitioner relies on the exception at § 2255(f)(3) to render his motion timely. Def.'s Mot. to Vacate or Correct Sentence 5. Under § 2255(f)(3), a petitioner's motion is timely if (1) it "assert[s] ... [a] right ... newly recognized by the Supreme Court," id. § 2255(f)(3), (2) it is filed within one year from "the date on which the right asserted was initially recognized by the Supreme Court," id. § 2255(f)(3), and (3) the Supreme Court or controlling Court of Appeals has declared the right retroactively applicable on collateral review, Dodd v. United States , 545 U.S. 353, 358–59, 125 S.Ct. 2478, 162 L.Ed.2d 343 (2005). As both the text of § 2255(f)(3) and Supreme Court precedent make clear, only the Supreme Court may "recognize" a new right under § 2255(f)(3). Dodd , 545 U.S. at 357–59, 125 S.Ct. 2478.

The present case turns most immediately on whether the right recognized by the Supreme Court in Johnson is the same one asserted by Petitioner. If the Supreme Court has yet to recognize the asserted right, then Petitioner's motion is time barred by § 2255(f)(1). If, however, Johnson did recognize the asserted right, then Petitioner's claim is timely under § 2255(f)(3) and he must be resentenced unless the Guidelines' residual clause, as applied in this case, can survive constitutional scrutiny under Johnson or, in the alternative, his Career Offender designation finds support in another provision of § 4B1.2. Although the Court finds that Petitioner's motion is time barred under § 2255(f)(1), it further concludes that, even if Johnson did recognize an applicable right within the meaning of § 2255(f)(3), that right, as applied in this case, would not render his Guidelines sentence unconstitutional.

I. Petitioner's Motion is Time Barred.

A. The Court May Sua Sponte Consider the Timeliness of Petitioner's Motion.

As a threshold matter, Petitioner asserts that, in failing to raise the issue in any pleading, the Government has waived its right to challenge the timeliness of his motion.²

In general, a party waives any affirmative defense, such as a statute of limitations, not raised in its first responsive pleading. See Fed. R. Civ. P. 8(c) ; see also Day v. McDonough , 547 U.S. 198, 207–09, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006) ; Morrison v. Mahoney , 399 F.3d 1042, 1046–47 (9th Cir. 2005). This general rule, however, is subject to exceptions. In the Ninth Circuit, for example, a party may raise an affirmative defense after an initial pleading if the other party is not prejudiced. See Rivera v. Anaya , 726 F.2d 564, 566 (9th Cir. 1984). The Supreme Court has also held that, in the context of federal habeas petitions, a district court may "consider, sua sponte , the timeliness" of a petition if the parties are given "fair notice and an opportunity to present their positions." Day , 547 U.S. at 207–09, 126 S.Ct. 1675 ; see also Shelton v. United States , 800 F.3d 292, 294 (6th Cir. 2015) (extending Day to § 2255 context).

Without parsing the ambiguous language of the Government's pleading, the Court believes it is appropriate and fair to sua sponte consider the timeliness of Petitioner's motion. Petitioner was given a full opportunity to argue timeliness at oral arguments, and was subsequently given notice and granted leave to file supplemental pleadings on the matter of timeliness. He cannot now claim to be prejudiced.

B. The Right Recognized by Johnson is Not the Right Asserted by Petitioner.

As noted above, the determinative issue in this case is whether Johnson recognized the specific right "asserted" by Petitioner. 28 U.S.C. § 2255(f)(3). It is clear, and the parties agree, that the Supreme Court's recent opinion in Beckles v. United States , ––– U.S. ––––, 137 S.Ct. 886, 197 L.Ed.2d 145 (2017), does not directly control this question. In Beckles , the Supreme Court clarified that the pre- Booker advisory Guidelines, including the residual clause of § 4B1.2(a)(2), "are not subject to vagueness challenges under the Due Process Clause." 137 S.Ct. at 890. In so doing, the Court repeatedly and explicitly emphasized that its holding was limited to the advisory sentencing regime. See id. at 890, 892, 894, 895, 896, 897 ; see also id. at 903 n.4 (Sotomayor, J., concurring in judgment) (noting that the majority opinion "leaves open" the question of whether the mandatory Guidelines are subject to void-for-vagueness challenges). Whereas the ACCA "fix[es] the permissible range of sentences," it reasoned, the advisory Guidelines "merely guide the exercise of the court's discretion." Id. at 892. The pre- Booker sentencing Guidelines, the Court thus concluded, "do not implicate the twin concerns underlying the vagueness doctrine—providing notice and preventing arbitrary enforcement." Id. at 894–95.

Nevertheless, a finding that Beckles does not, by its terms, foreclose this Court from reading Johnson as recognizing the right asserted by Petitioner does not resolve whether Johnson did, in fact, recognize such a right. See United States v. Castaneda , 91–00582–AK, 274 F.Supp.3d 1040, 1042, 2017 WL 3448192, at *2 (C.D. Cal. June 19, 2017) (Kozinski, J., sitting by designation) (explaining that, although " Beckles does not preclude [petitioners] from arguing that the mandatory Guidelines are subject to ... Johnson ," it also does not end the analysis). That inquiry depends on how one defines what qualifies as a newly recognized right. See United States v. Autrey , No. 1:99–cr–467, 263 F.Supp.3d 582, 587, 2017 WL 2646287, at *3 (E.D. Va. June 19, 2017) ("[E]mbedded in the parties' dispute on timeliness is a question about the meaning of the term ‘right’ as used in § 2255(f)(3)."); Mitchell v. United States , No. 3:00-CR-00014, 2017 WL 2275092, at *3 (W.D. Va. May 24, 2017) (framing the parties' dispute as turning on "the meaning of ‘right’ under § 2255(f)(3) and its application to...