United States v. Ervin
| Decision Date | 28 July 2016 |
| Docket Number | Cause No. CR 13-23-BLG-SPW,CV 16-56-BLG-SPW |
| Citation | 198 F.Supp.3d 1169 |
| Parties | UNITED STATES of America, Plaintiff/Respondent, v. Michael Anthony ERVIN, Defendant/Movant. |
| Court | U.S. District Court — District of Montana |
Paulette L. Stewart, Office of the U.S. Attorney, Helena, MT, for Plaintiff/Respondent.
David F. Ness, Federal Defenders of Montana, Great Falls, MT, Marvin S. McCann, McCann Law Firm, Billings, MT, for Defendant/Movant.
ORDER GRANTING § 2255 MOTION AND SETTING EXPEDITED RE-SENTENCING HEARING
This case comes before the Court on Defendant/Movant Ervin's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. He seeks relief under Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015)1 , and Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The United States opposes Ervin's motion.
Ervin was charged on March 25, 2013, with one count of distributing hydrocodone, at that time a Schedule III controlled substance, in violation of 21 U.S.C. § 841(a)(1) (Count 1), and one count of distributing morphine, a Schedule II controlled substance, also in violation of 21 U.S.C. § 841(a)(1) (Count 2). He reached a plea agreement with the United States and pled guilty to the hydrocodone count, Count 1. See Indictment (Doc. 1) at 2; Plea Agreement (Doc. 24) at 3 ¶ 4; Minutes (Doc. 28); Judgment (Doc. 36) at 1. On September 10, 2013, he was sentenced to serve 148 months in prison. Judgment (Doc. 36) at 2.
In 2014, Ervin filed a timely motion under 28 U.S.C. § 2255. This court granted the motion on April 2, 2015, and vacated the original judgment. On July 10, 2015, following a sentencing hearing, this Court sentenced Ervin to 60 months in prison, and two years of supervised release. Am. Judgment (Doc. 68) at 2-3; Statement of Reasons (Doc. 69) at 1 ¶ III. Ervin did not appeal.
On May 12, 2016, Ervin, represented by new counsel, filed the instant motion under 28 U.S.C. § 2255. In it, Ervin alleges that his sentence is unlawful because his underlying conviction out of Michigan does not qualify as a "crime of violence" under Johnson II, so he is not a career offender under the Sentencing Guidelines, see Mot. § 2255 (Doc. 72) at 9-10. To that end, Ervin also alleges that his counsel at the re-sentencing hearing was ineffective by failing to realize that, under Johnson II, Ervin's Michigan conviction was no longer a crime of violence and failing to object to Ervin's designation as a career offender. Id. at 10.
As a threshold matter, the United States argues that Johnson II does not apply "retroactively" to cases challenging guidelines sentences on collateral review. See Resp. to § 2255 Mot. (Doc. 77) at 7-14. While the Court agrees with this general proposition, Ervin's situation is distinguishable.
Because Johnson II overruled recent precedents, it is a "new rule" that makes a clear break with prior law. See Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 1264, 194 L.Ed.2d 387 (2016). The general rule is that new constitutional rules of criminal procedure do not apply retroactively. See Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) () (Emphases added). An exception to the general rule exists, however, with respect to any case that is pending on direct review or not yet final. See Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) ().
Here, Ervin's case was not final when Johnson II was decided. This Court vacated his original judgment on April 2, 2015. Johnson II was issued on June 26, 2015. Ervin's amended judgment was not entered until July 13, 2015. Ervin's conviction became final on July 27, 2015, when his time to appeal the amended judgment expired. See Fed. R. App. P. 4(b)(1)(A)(i) ; Griffith, 479 U.S. at 321 n. 6, 107 S.Ct. 708. According to Griffith, the date a conviction becomes final determines what law applies to a § 2255 motion. Because Ervin's conviction was not yet final when Johnson II was issued, Ervin is not asking the Court to apply a "new" rule. He is in no different position than any other defendant sentenced after Johnson II was issued, so Johnson II applies in Ervin's case.
First, Ervin claims that his conviction under Michigan law for attempted unarmed robbery does not qualify as a "crime of violence" under any part of the definition in U.S.S.G. § 4B1.2(a). Mot. § 2255 (Doc. 72) at 13-42. In response, the United States argues that it qualifies as a "crime of violence" under the "elements clause," U.S.S.G. § 4B1.2(a)(1). Resp. to § 2255 Mot. (Doc. 77) at 15-24.
Second, Ervin also claims that counsel was ineffective for failing to challenge Ervin's career offender designation under Johnson II since his Michigan conviction did not qualify as a crime of violence. Mot. § 2255 at 42-47; see also Reply (Doc. 81) at 14-15. The United States argues that counsel's performance was not deficient because competent counsel could not be expected to foresee that Johnson II would apply to the sentencing guidelines. Resp. to § 2255 Mot. at 24-27.
In the Order requiring the United States to answer Ervin's motion, the Court required the United States to "respond to the allegations on the merits and ... raise and brief any and all defenses the United States wishes the Court to consider." Order (Doc. 73) at 4-5 ¶ 2. The Court will decide only the two issues the parties have presented evidence on: whether it was unreasonable for counsel to fail to foresee that Johnson II would apply to the guidelines and, if so, whether Ervin is a career offender. The Court will not consider the possibility that counsel did foresee that Johnson II would apply to the guidelines but decided that Ervin would be a career offender under the elements clause. The United States did not indicate that discovery or an evidentiary hearing would be required to determine why counsel conducted the defense as he did and thus failed to preserve the argument.
Simply because Johnson II applies to Ervin's § 2255 motion does not necessarily mean he is entitled to relief. Because Ervin could have, but failed to, object to a Johnson II error at sentencing and did not appeal, his claim for relief under the rule of that case is procedurally defaulted. Bousley v. United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). The claim may addressed on its merits only if Ervin excused his default. See, e.g., United States v. Frady, 456 U.S. 152, 167–68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982).
Where it exists, ineffective assistance of counsel serves as cause to excuse procedural default. See Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Additionally, ineffective assistance is a freestanding claim for relief. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Consequently, the Court must first consider Ervin's ineffective assistance claim. Ervin must show that counsel's performance fell below an objective standard of reasonableness, Strickland, 466 U.S. at 687–88, 104 S.Ct. 2052, and that, if counsel had challenged the career offender enhancement, there was a reasonable probability of a different outcome. Id. at 694, 104 S.Ct. 2052. Only if Ervin's ineffective assistance claim succeeds may the Court consider whether Ervin is or is not a career offender.
The United States asserts that counsel acted reasonably in failing to challenge Ervin's career offender designation under Johnson II because Johnson II addressed the Armed Career Criminal Act ("ACCA"), not the sentencing guidelines. As of Ervin's sentencing date, no published federal case had yet held that Johnson II applied to the guidelines. Resp. to § 2255 Mot. at 24-27.
In every case, Strickland requires that counsel identify the objectives most important to the defendant's case and do the research necessary to decide whether and how to pursue those objectives. See, e.g., United States v. Beltran – Moreno, 556 F.3d 913, 918 (9th Cir.2009) ; see also Strickland, 466 U.S. at 690–91, 104 S.Ct. 2052. While it would have required a crystal ball to foresee all the implications or potential applications of Johnson II the day it was issued, the nature of the case required every criminal defense lawyer who had a client subject to the career offender designation to consider its impact on that designation. As Strickland says, there is a "wide range of reasonable professional assistance." 466 U.S. at 689, 104 S.Ct. 2052. Defense counsel cannot be ineffective for failing to foresee the holding of Johnson II at a sentencing hearing in November 2014, six months before Johnson II was issued. Conversely, defense counsel would be ineffective by failing to recognize that the residual clause of the ACCA was invalid after Johnson II was issued on June 26, 2015. These are opposite ends of a spectrum. Throughout that spectrum, however, it would be ineffective to fail to research the law relevant to an enhancement that results in a significant increase in the client's sentencing range.
Accordingly, the Court finds that a hearing is unnecessary to determine whether counsel made a reasonable strategic decision that a challenge to the career offender provision was unlikely to succeed. There is no reasonable explanation for counsel's failure to research and object to the enhancement.
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