United States v. Howard
| Decision Date | 16 February 2017 |
| Docket Number | Crim. Case No.: 93cr843 JM,Civil Case No.: 16cv1538 JM,Civil Case No.: 16cv2709 JM |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. DETRARA HOWARD, Defendant. |
| Court | U.S. District Court — Southern District of California |
This matter comes before the court on Defendant Detrara Howard's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 ("section 2255"). (Doc. Nos. 148, 151.) For the following reasons, the court grants Howard's motion.
In October 1993, Howard was indicted on four charges: armed bank robbery, in violation of 18 U.S.C § 2113(a), (d) (Count 1); use and carrying of a firearm during the commission of a crime of violence, in violation of 18 U.S.C. § 924(c)(1) (Count 2); felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1) (Count 3); and felon in possession of ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1) (Count 4). Howard was convicted by a jury on Count 1 and by a judge on Counts 3 and 4. The jury hung on Count 2 and a mistrial was declared.
Howard's presentence report noted a maximum sentence of 300 months on Count 1 and an applicable sentencing range of 262-327 months for Counts 3 and 4. In March 1994, Howard was sentenced to 300 months on Count 1 and 327 months for each of Counts 3 and 4, all to run concurrently. In imposing the 327-month sentence, the judge applied the Armed Career Criminal Act ("ACCA"), finding that Howard's numerous prior convictions for robbery under California Penal Code section 211 ("California robbery") and single conviction for assault with a deadly weapon, Cal. Penal Code § 245(a)(1), were "violent felonies" under ACCA. Later that month, Howard was retried on Count 2 and convicted by a jury. Because the section 924(c) conviction carried a mandatory consecutive 60-month sentence, the judge added this term to Howard's previously imposed 327-month sentence.
Howard appealed to the Ninth Circuit on various issues, winning a reversal of conviction on Count 1, which the government dismissed following remand.1 Howard then filed a motion seeking resentencing on Counts 3 and 4, asking for placement at the low end of the guideline range rather than the high end. The judge denied the motion, finding the court did not have jurisdiction to entertain it. (Doc. No. 95.) Howard appealed that denial to the Ninth Circuit, which affirmed the district court. (Doc. No. 109.) Thus, in total, Howard was sentenced to 327 months for Counts 3 and 4 and an additional 60 months for Count 2.
In September 1998, Howard filed a section 2255 motion, but raised no sentencing issues. (Doc. No. 110.) Instead, Howard argued that the trial court used incorrect jury instructions, that his counsel erred by stipulating to his status as a convicted felon, and that he was denied a fair jury trial. The judge denied the petition, (Doc. No. 129), and a request for a certificate of appealability, (Doc. No. 131), which the Ninth Circuit denied as well, (Doc. No. 133). In October 2008, Howard sought relief under 18 U.S.C.§ 3582(c)(2). (Doc. No. 136.) Howard's case was transferred to this court, and this court denied that motion. (Doc. No. 141.)
On June 17, 2016, Howard filed the instant motion2 and notified the court he had also filed an application for leave to file a second or successive motion to vacate his sentence with the Ninth Circuit.3 (Doc. No. 148 at 1.) The Ninth Circuit granted Defendant's application for authorization to file a second or successive section 2255 motion on November 1, 2016. (Doc. No. 152.)
In the pending motion, Howard argues that (1) the Supreme Court's June 25, 2015, decision in Johnson v. United States, 135 S. Ct. 2551 (2015), nullified the residual clause in the definition of violent felony in ACCA; (2) Johnson applies retroactively; (3) without the residual clause, California robbery is not a violent felony as defined by ACCA; and (4) without his convictions for California robbery serving as predicate violent felonies, he is not subject to ACCA's enhanced sentencing scheme, but rather the 10-year statutory maximum generally imposed for violations of the felon-in-possession statute.4 See 18 U.S.C. § 924(a)(2).
Howard argues that, post-Johnson, ACCA's sentencing enhancement does not apply, meaning his 327-month sentence for being a felon-in-possession far exceeded the 10-year statutory maximum generally applicable to such violations.
Section 2255 provides that "[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255. If the court determines that relief is warranted under section 2255, it must "vacate and set the judgment aside" and "discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." Id. § 2255(b).
Howard asserts that, excised of its residual clause, ACCA's definition of violent felony does not encompass convictions for California robbery, and therefore he does not have the requisite three predicate felony convictions to justify application of ACCA.
Before turning to the merits of Howard's claim, the court must determine whether Howard has procedurally defaulted his section 2255 motion by failing to appeal his sentence. The general rule is that "claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice." Massaro v. United States, 538 U.S. 500, 504 (2003). The court finds that cause and prejudice both exist in this case.
The Supreme Court has held that cause is established when "the factual or legal basis for a claim was not reasonably available to counsel" at the time a direct appeal could have been filed. Murray v. Carrier, 477 U.S. 478, 488 (1986). Thus, there is noprocedural default based on a failure to file a direct appeal if the appeal "would have been futile, because a solid wall of circuit authority" precluded that appeal. English v. United States, 42 F.3d 473, 479 (9th Cir. 1994) (internal quotations and citations omitted); see also Kimes v. United States, 939 F.2d 776, 778 (9th Cir. 1991) ().
Here, Johnson expressly overruled prior Supreme Court cases upholding ACCA's residual clause. See James v. United States, 550 U.S. 192 (2007); Sykes v. United States, 131 S. Ct. 2267 (2011). Thus, before Johnson, vagueness challenges to the residual clauses in ACCA were foreclosed by clear Supreme Court precedent. Accordingly, Howard has demonstrated cause for his procedural default.
Howard must also demonstrate prejudice by showing that the alleged error "worked to his actual and substantial disadvantage . . . ." United States v. Braswell, 501 F.3d 1147, 1150 (9th Cir. 2007). In this case, Howard received a sentence of 327 months for Count 3 and the same for Count 4, to run concurrently. Had ACCA not applied, Howard would have received a sentence of 120 months for Count 3 and the same for Count 4, to run concurrently.5 This error undoubtedly prejudiced Howard.
ACCA provides:
In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years . . . .
18 U.S.C. § 924(e)(1).
The term "violent felony" means "any crime punishable by imprisonment for a term exceeding one year . . . that (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." Id. § 924(e)(2)(B). Section 924(e)(2)(B)(i) is typically referred to as the "force" or "elements" clause. The first portion of section 924(e)(2)(B)(ii), which lists the four enumerated offenses, is typically referred to as the "enumerated offenses" clause. And the second portion of section 924(e)(2)(B)(ii), beginning with the words "or otherwise," is typically referred to as the "residual clause." Thus, when Howard was sentenced, there were three ways a conviction could qualify as a violent felony: (1) under the force/elements clause, (2) as a match for one of the four enumerated offenses, or (3) under the residual clause.
In Johnson, the Supreme Court held the residual clause unconstitutional under the void-for-vagueness doctrine, which is mandated by the Due Process Clauses of the Fifth and Fourteenth Amendments. The void-for-vagueness doctrine prohibits the government from imposing sanctions "under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement." Johnson, 135 S. Ct. at 2556. The Court observed that federal courts faced "pervasive disagreement" over how the ACCA's residual clause should be interpreted, and therefore determined that it could not be reconciled with that prohibition. Id. at 2560. For these reasons, Johnson held that "increasing a defendant's sentence under the [residual] clause denies due process of law." Id. at 2557.
The next year, the Supreme Court held that Johnson applies retroactively to ACCA cases. Welch v. United States, 136 S. Ct. 1257, 1268 (2016). The...
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