United States v. Kennedy, CASE NO. 1:12–CR–414–LJO–SKO–1

• Decision Date: 03 November 2016
• Docket Number: CASE NO. 1:12–CR–414–LJO–SKO–1
• Citation: 218 F.Supp.3d 1104
• Court: U.S. District Court — Eastern District of California
• Parties: UNITED STATES of America, Plaintiff–Respondent, v. Corbin James KENNEDY, Defendant–Petitioner.

218 F.Supp.3d 1104

UNITED STATES of America, Plaintiff–Respondent,

v.Corbin James KENNEDY, Defendant–Petitioner.

CASE NO. 1:12–CR–414–LJO–SKO–1

United States District Court, E.D. California.

Signed November 3, 2016

Fresno Forfeiture Unit, Melanie Leigh Alsworth, Govt, United States Attorney's

Office, Fresno, CA, for Plaintiff–Respondent,.

Marc Days, Federal Defender, Fresno, CA, for Defendant–Petitioner.

MEMORANDUM DECISION AND ORDER GRANTING PETITIONER'S § 2255 MOTION AND DENYING GOVERNMENT'S RENEWED MOTION TO STAY: TIME SENSITIVE ORDER

(ECF Nos. 23, 32)

Lawrence J. O'Neill, UNITED STATES CHIEF DISTRICT JUDGE

I. INTRODUCTION

Before the Court is Petitioner Corbin James Kennedy's ("Petitioner" or "Kennedy") motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, filed on June 21, 2016. ECF No. 23. On August 10, 2016, the Government filed a motion to stay Petitioner's § 2255 motion. ECF No. 26. The Court initially granted the Government's motion, but vacated the stay upon Petitioner's motion for reconsideration. ECF No. 31. The Government filed its merits opposition, along with a renewed motion to stay, on September 30, 2016. ECF No. 37. Petitioner filed a merits reply on October 25, 2016. ECF No. 33. Having considered the parties' briefing and the record in this case, the Court GRANTS Petitioner's motion and DENIES AS MOOT the Government's renewed motion to stay.

II. BACKGROUND

On May 13, 2013, Petitioner was sentenced to 63 months in prison after pleading guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). ECF Nos. 21, 22. At sentencing, he was found to qualify for a sentencing enhancement under United States Sentencing Guidelines ("USSG" or "Guidelines") § 2K2.1(a)(3) because the underlying offense involved a firearm described in 26 U.S.C. § 5845(a) and because Petitioner had committed the underlying offense subsequent to sustaining a conviction for a "crime of violence," attempted grand theft of a person, in violation of Cal. Penal Code ("CPC") § 487(c). ECF No. 23 at 7–8¹ ; see also Presentence Report ("PSR"), ECF No. 16 at 5–6. With the enhancement, Petitioner's base offense level was set at 22. PSR at 5–6. Three points were subtracted for acceptance of responsibility, bringing his total offense level to 19 with a criminal history category of VI. Id. at 6, 13. The applicable Guidelines range was determined to be 63 to 78 months. Id. at 3. On May 15, 2013, the Court entered a judgment sentencing Petitioner to 63 months in prison. ECF No. 22.

Without the applicable sentencing enhancement under § 2K2.1(a)(3), the base offense level would have been set at 20 pursuant to USSG § 2K2.1(a)(4), bringing his total offense level down two points to 17. ECF No. 23 at 8. The corresponding Guidelines range for an offense level of 17 with a criminal history category of VI is 51 to 63 months. Id. ; USSG Chap. 5, Part A.

Petitioner did not appeal his conviction or sentence. ECF No. 23 at 8. This is his first motion under 28 U.S.C. § 2255. Id.

III. STANDARD OF DECISION

Section 2255 provides four grounds upon which a sentencing court may grant relief to a petitioning in-custody defendant:

[1] that the sentence was imposed in violation of the Constitution or laws of the United States, or [2] that the court was without jurisdiction to impose such sentence, or [3] that the sentence was in excess of the maximum authorized by law, or [4] is otherwise subject to collateral attack.

28 U.S.C. § 2255(a). Generally, only a narrow range of claims that fall within the scope of § 2255. United States v. Wilcox , 640 F.2d 970, 972 (9th Cir. 1981). The alleged error of law must be "a fundamental defect which inherently results in a complete miscarriage of justice." Davis v. United States , 417 U.S. 333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) (quoting Hill v. United States , 368 U.S. 424, 429, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962) ).

IV. DISCUSSION

Petitioner challenges his sentence on the basis that the Guidelines calculation underlying his sentence incorporated the same definition of a "crime of violence" that the Supreme Court determined was unconstitutionally vague in the context of the Armed Career Criminal Act ("ACCA") in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 2563, 192 L.Ed.2d 569 (2015). Without the two-point sentencing enhancement, the sentencing range applicable to Petitioner would have been 51 to 63 months, rather than 63 to 78 months. ECF No. 23 at 7–8.

The ACCA provides that a defendant with three prior convictions for violent felonies must be sentenced to a mandatory minimum of 15 years in prison. 18 U.S.C. § 924(e)(2)(B). The ACCA defined the term "violent felony" in three clauses: the elements clause, the enumerated clause, and the residual clause. Id. Under the residual clause, a 'violent felony' is one that "involves conduct that presents a serious potential risk of physical injury to another." § 924(e)(2)(B)(ii). In Johnson , the Supreme Court determined that the residual clause was unconstitutionally vague such that it "violate[d] the Constitution's guarantee of due process." 135 S.Ct. at 2563. In Welch v. United States , the Supreme Court held that its decision in Johnson announced a new substantive rule that applies retroactively to cases on collateral review. ––– U.S. ––––, 136 S.Ct. 1257, 1268, 194 L.Ed.2d 387 (2016)

Although Petitioner was sentenced under the Guidelines rather than the ACCA, the Guidelines' definition of "crime of violence" includes an identical residual clause to the one held to be unconstitutionally vague in Johnson . USSG § 4B1.2(a)² ("the term 'crime of violence' means any offense... [that] otherwise involves conduct that presents a serious potential risk of physical injury to another"); see also United States v. Spencer , 724 F.3d 1133, 1138 (9th Cir. 2013) (holding that the Ninth Circuit makes "no distinction between the terms 'violent felony' [as defined in the ACCA] and 'crime of violence' [as defined in § 4B1.2(a)(2) of the Sentencing Guidelines] for purposes of interpreting the residual clause[s]"). The Government concedes that the residual clause of § 4B1.2(a)(2) is unconstitutionally vague after Johnson .³ ECF No. 32 at 17. The Government further concedes that after Johnson , Petitioner's conviction for evading a peace officer under CPC § 487(c) is not a "crime of violence" within the meaning of remaining clauses of § 4B1.2(a). Id. at 23.⁴

Nonetheless, the Government contends that Petitioner is not entitled to relief under 28 U.S.C. § 2255 for two reasons. First, the Government asserts that Petitioner procedurally defaulted his § 2255 claim because he did not raise the argument that the residual clause of § 4B1.2(a) was unconstitutionally vague on direct appeal. Id. at 13–17. Second, the Government argues that Johnson does not apply retroactively to challenges under the Sentencing Guidelines. Id. at 17–23.

A. Procedural Default

To overcome a procedural default on collateral review, Petitioner must show cause and actual prejudice. Massaro v. United States , 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003). To show "cause", a defendant "must ordinarily...show that some factor external to the defense impeded counsel's efforts to comply...with the procedural rule." Murray v. Carrier , 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). A constitutional claim is sufficiently novel where its "legal basis [was] not reasonably available to counsel." Reed v. Ross , 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984). As the Supreme Court explained in Reed , a claim is not reasonably available to counsel where "a decision of this Court... explicitly overrule[s] one of our precedents." Id. at 17, 104 S.Ct. 2901.

Here, Johnson explicitly overruled two Supreme Court cases holding that the residual clause of the ACCA was constitutional. James v. United States , 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) ; Sykes v. United States , 564 U.S. 1, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011). In James , the majority rejected the notion that the ACCA was unconstitutionally vague, stating: "[t]he statutory requirement that an unenumerated crime 'otherwise involv[e] conduct that presents a serious potential risk of physical injury to another' is not so indefinite as to prevent an ordinary person from understanding what conduct it prohibits." 550 U.S. at 210 n.6, 127 S.Ct. 1586. Similarly, in Sykes , the majority declined the dissent's suggestion that the Court "admit that ACCA's residual provision is a drafting failure and declare it void for vagueness." 564 U.S. at 28, 131 S.Ct. 2267 (Scalia, J., dissenting). Shortly before Johnson was decided, the Ninth Circuit recognized that both "Supreme Court and Ninth Circuit precedent foreclose" arguments "that the ACCA's residual clause is unconstitutionally vague." United States v. Martinez , 771 F.3d 672, 678 (9th Cir. 2014)⁵ .

Petitioner was sentenced on May 13, 2013, after James and Sykes , but before Johnson. Therefore, at the time Petitioner was sentenced, a vagueness challenge to the identically worded residual clause in § 4B1.2(a) was foreclosed by Supreme Court precedent. See United States v. Garcia , 202 F.Supp.3d 1109, 1113-14, 2016 WL 4364438, at *3 (N.D. Cal. 2016) (petitioner challenging § 4B1.2(a) did not procedurally default argument by not raising it on direct appeal because argument was not "reasonably available" before Johnson ); United States v. Dean , 169 F.Supp.3d 1097, 1107–08 (D. Or. 2016) (same); Gilbert v. United States , Nos. C15–1855 JCC, 2016 WL 3443898, at *2–3 (W.D. Wash. June 23, 2016) (same); United States v. Stamps , No. CR 13–238 CW, 2016 WL 3747286, at *3 (N.D. Cal. June 29, 2016) (same); United States v. Snead , No. CR 12–0649 CW, 2016 WL 4091548, at *3 (N.D. Cal. Aug. 2, 2016) (same).

Petitioner must also show prejudice by demonstrating that the alleged error "worked to his actual and substantial disadvantage, infecting his entire trial with error of...