United States v. Dubose
| Docket Number | 6:08-cr-60053-AA,6:16-cv-01282-AA |
| Decision Date | 01 March 2022 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. COLBY TODD DUBOSE, Defendant. |
| Court | U.S. District Court — District of Oregon |
This case comes before the Court on Defendant's Motion to Vacate or Correct Sentence pursuant to 28 U.S.C. § 2255. ECF No. 35. Because the motion and the record conclusively show that Defendant is not entitled to relief, no evidentiary hearing is required. For the reasons set forth below Defendant's motion is DENIED and the Court declines to issue a certificate of appealability.
On June 20, 2008, Defendant was indicted for Armed Bank Robbery in violation of 18 U.S.C. §§ 2113(a), (d) (Count 1); the Carrying and Use of a Firearm During a Crime of Violence in violation of 18 U.S.C. § 924(c)(1)(A) (Count 2); and Felon in Possession of a Firearm in violation of 18 U.S.C § 921(a)(20) (Count 3). ECF No. 7. The Indictment alleged that Defendant had three convictions for Theft I in 1983, two convictions for Burglary I in 1983, a conviction for Theft I in 1985, and a conviction for Escape II in 1986 all in Oregon state court. Defendant also had federal convictions for Bank Robbery in 1989 and 1996, as well as a federal conviction for Possession of a Prohibited Object While Incarcerated in 1991.
On May 22, 2009, Defendant pleaded guilty to all three counts of the Indictment pursuant to a plea agreement with the Government. ECF Nos. 26, 27. In his plea agreement, Defendant admitted that for purposes of Count 3, he had two convictions for Burglary I and a conviction for Escape II in Oregon state court and that in federal court he had two prior convictions for Bank Robbery and a conviction for Possession of a Prohibited Object While Incarcerated. ECF No. 27. On September 2, 2009, this Court sentenced Defendant to 188 months on Counts 1 and 3 to run concurrently and 84 months on Count 2 to run consecutive to the sentences for Counts 1 and 3 for a total sentence of 272 months followed by five years of supervised release. ECF Nos. 31, 33.
Under 28 U.S.C. § 2255, a federal prisoner in custody under sentence may move the court that imposed the sentence to vacate, set aside, or correct the sentence on the ground that:
[T]he 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).
To warrant relief, a petitioner must demonstrate that the error of constitutional magnitude had a substantial and injurious effect or influence on the guilty plea or the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see also United States v. Montalvo, 331 F.3d 1052, 1058 (9th Cir. 2003) ().
Under § 2255, “a district court must grant a hearing to determine the validity of a petition brought under that section, ‘[u]nless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief.'” United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (alteration and emphasis in original) (quoting 28 U.S.C § 2255). In determining whether a § 2255 motion requires a hearing, “[t]he standard essentially is whether the movant has made specific factual allegations that, if true, state a claim on which relief could be granted.” United States v. Withers, 638 F.3d 1055, 1062 (9th Cir. 2011) (alteration in original, internal quotation marks and citation omitted).
A district court may dismiss a § 2255 motion based on a facial review of the record “only if the allegations in the motion, when viewed against the record, do not give rise to a claim for relief or are ‘palpably incredible or patently frivolous.'” Withers, 638 F.3d at 1062-63 (quoting United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984)); see United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980). Conclusory statements in a § 2255 motion are insufficient to require a hearing. Hearst, 638 F.2d at 1194.
Federal law generally prohibits felons from possessing firearms. 18 U.S.C. § 922(g)(1). Under ordinary circumstances, ten years is the maximum term of imprisonment for a violation of § 922(g). However, if a felon with three previous convictions for a “violent felony or a serious drug offense” violates § 922(g), the Armed Career Criminal Act (“ACCA”) mandates a sentence of at least 15 years. 18 U.S.C. § 924(e)(1).
At the time of Defendant's sentencing, the ACCA defined a “violent felony” as a felony that:
18 U.S.C. § 924(e)(2)(A).
Clause (i) of this definition is known as the “force clause, ” while clause (ii) are the “enumerated offenses, ” and clause (iii) is known as the “residual clause.” In June 2015, the Supreme Court struck down the ACCA “residual clause” as unconstitutionally vague. Johnson v. United States, 576 U.S. 591, 606 (2015). The Supreme Court subsequently held that Johnson had announced a substantive rule that had retroactive effect in cases on collateral review. Welch v. United States, 578 U.S. 120, 135 (2016). Following Johnson, a conviction will only qualify as a predicate under the ACCA if it falls within the force clause or the enumerated offenses.
Courts use the “categorical approach” to determine whether a prior conviction is a predicate offense under the ACCA. United States v. Parnell, 818 F.3d 974, 978 (9th Cir. 2016). Using the categorical approach, courts “compare the elements of the statute forming the basis of the defendant's conviction with the elements of the ‘generic' crime-i.e., the offense as commonly understood.” Descamps v. United States, 570 U.S. 254, 257 (2013). “The prior conviction qualifies as an ACCA predicate only if the statute's elements are the same as, or narrower than, those of the generic offense.” Id. Under the categorical approach, courts do not look beyond the elements of the statute of conviction and must presume that the conviction rests upon the least of the acts criminalized. Ramirez v. Lynch, 810 F.3d 1127, 1131 (9th Cir. 2016). If, after conducting this analysis, the court concludes that the state statute of conviction criminalizes more conduct than the generic offense, then it is overbroad and the conviction will not qualify as a predicate offense. Id.
The Supreme Court has, however, recognized that some statutes set out one or more elements of the offense in the alternative, essentially forming “several different crimes.” Descamps, 570 U.S. at 257, 261-62. “If at least one, but not all of those crimes matches the generic version, a court needs a way to find out which the defendant was convicted of.” Id. at 264. In cases involving such “divisible” statutes, courts are permitted to apply the “modified categorical approach.” Id. at 258. Under the modified categorical approach, courts may look beyond the elements of the statute to documents like charging instruments, jury instructions, plea agreements, transcripts of plea hearings, and judgments to determine whether the defendant was convicted of a set of elements that fall within the generic definition. Mathis v. United States, 579U.S.500, 136 S.Ct. 2243, 2249 (2016); Ramirez, 810 F.3d at 1131.
In this case, the elimination of the residual clause removes most of Defendant's prior convictions from consideration as predicate offenses, leaving only Defendant's state court convictions for Burglary I in violation of ORS 164.225, and Defendant's federal convictions for Armed Bank Robbery in violation of 18 U.S.C. §§ 2113(a), (d). The Court will address each in turn.
As previously noted, at the time of sentencing Defendant had two prior convictions for Armed Bank Robbery in 1989 and in 1996, both in the District of Oregon. Def. Mot. Ex. A (“PSR”) at 13-14. ECF No. 46. Defendant contends that his prior bank robbery convictions do not qualify as crimes of violence under the ACCA.
First, Defendant argues that his prior federal bank robberies do not qualify as crimes of violence because bank robbery by force or intimidation does not require use or threatened use of violent force. A “crime of violence” is “an offense [that] must have as an element the use, attempted use, or threatened use of violent physical force-‘that is, force capable of causing physical pain or injury to another person.'” United States v. Gutierrez, 876 F.3d 1254, 1256 (9th Cir. 2017) (quoting Johnson v. United States, 559 U.S. 133, 140 (2010)). In Gutierrez, the Ninth Circuit held that:
‘intimidation' as used in the federal bank robbery statute requires that a person take property ‘in such a way that would put an ordinary, reasonable person in fear of bodily harm,' which necessarily entails the ‘threatened use of physical force.' As a result, in our court, too, federal bank robbery constitutes a crime of violence.
Id. at 1257 (quoting United States v. Selfa, 918 F.2d 749, 751 (9th Cir. 1990)).
In United States v. Goodin, Case No. 6:11-cr-60146-AA 6:12-cr-00021-AA, 6:17-cv-00004-AA, 6:17-cv-00002-AA, 2020 WL 1813248, at *2-3 (D. Or. April 9, 2020), this Court relied on...
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