United States v. Ladwig

• Decision Date: 28 June 2016
• Docket Number: Case No. 2:03-CR-00232-RHW
• Citation: 192 F.Supp.3d 1153
• Court: U.S. District Court — District of Washington
• Parties: UNITED STATES of America, Plaintiff, v. Craig Allen LADWIG, Defendant.

192 F.Supp.3d 1153

UNITED STATES of America, Plaintiff,

v.Craig Allen LADWIG, Defendant.

Case No. 2:03-CR-00232-RHW

United States District Court, E.D. Washington.

Signed June 28, 2016

Stephanie Joyce Lister, US Attorney's Office, Spokane, WA, for Plaintiff.

Alison Klare Guernsey, Federal Defenders, Yakima, WA, Matthew A. Campbell, Christina L. Hunt, Meredith B. Esser, Federal Defenders, Spokane, WA, for Defendant.

ORDER GRANTING DEFENDANT'S 28 U.S.C. § 2255 MOTION TO VACATE

U.S. MARSHAL SERVICE ACTION REQUIRED

ROBERT H. WHALEY, Senior United States District Judge

Before the Court is Defendant's 28 U.S.C. § 2255 Motion to Vacate Sentence and for Immediate Release. ECF No. 58. The Court heard oral argument on June 22, 2016. Mr. Ladwig was represented by Alison Guernsey of the Federal Defenders of Eastern Washington and Idaho. Assistant United States Attorney Stephanie Lister appeared on behalf of the government. The Court has reviewed the motion and all relevant filings, considered oral argument from counsel, and is fully informed.

BACKGROUND

On November 4, 2003, a grand jury returned an indictment charging Mr. Ladwig with two counts of possession of a firearm by a prohibited person, in violation of 18 U.S.C. §§ 922(g) and 924. ECF No. 2. Mr. Ladwig pled guilty to count two of the Indictment, a single felon in possession charge, on March 3, 2004. ECF No. 17. Mr. Ladwig's Presentence Investigation report advised that Mr. Ladwig qualified for an enhanced sentence under the Armed Career Criminal Act ("ACCA"), ECF No. 64 at 34, which if applicable to Mr. Ladwig, would enhance his sentence from a statutory maximum of ten years to a statutory minimum of fifteen. See 18 U.S.C. §§ 924(a)(2) & (e)(1). The Presentence Report noted three prior convictions that U.S. Probation believed qualified Mr. Ladwig for the statutory enhancement: second degree burglary, in violation of WASH. REV. CODE § 9A.52.030 ; attempted second degree rape, in violation of WASH. REV. CODE § 9A.44.040(1)(a) ; and harassment/threat to kill, in violation of Wash. Rev. Code § 9A.61.230(2)(b).

At the September 3, 2004 sentencing hearing, Mr. Ladwig conceded that his second-degree burglary charge qualified as a predicate felony. ECF No. 35 at 9. Mr. Ladwig also appears to have conceded that his attempted second degree rape conviction was an ACCA predicate felony, as he did not object to the Presentence Report's inclusion of that conviction either at the sentencing hearing or in his filed objections to the Presentence Report. See ECF No. 35 (transcript of sentencing); ECF No. 26 (Defendant's objections to the Presentence Report). The only predicate felony Mr. Ladwig contested at his sentencing hearing was his conviction for Harassment/Threat to Kill. See ECF No. 35 at 10.

The Court overruled Mr. Ladwig's objection, found him to be an armed career criminal, id. at 13-14, and sentenced him to a 200 month term of incarceration, five years of supervised release, a $100 special penalty assessment, and no fine. ECF No. 29.¹ Mr. Ladwig appealed this Court's finding that his telephone harassment conviction was a violent felony, but on December 27, 2005 the Ninth Circuit affirmed. See United States v. Ladwig , 432 F.3d 1001 (9th Cir.2005).

On June 27, 2014, Mr. Ladwig filed a motion under 28 U.S.C. § 2255 to vacate his sentence based on the U.S. Supreme Court's decision in United States v. Descamps , ––– U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). ECF No. 43. On November 14, 2014, this Court stayed consideration of Mr. Ladwig's motion until the Ninth Circuit issued a decision in Ezell v. United States , 778 F.3d 762 (9th Cir.2015), which ultimately held that Descamps did not announce a new rule of constitutional law. Following the Ninth Circuit's reasoning in Ezell , the Court denied Mr. Ladwig's motion as untimely. ECF No. 51.

On November 20, 2015, Mr. Ladwig filed an Application for Permission to File a Second or Successive Habeas Corpus Petition with the Ninth Circuit in light of Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). On April 27, 2016, the Ninth Circuit granted Mr. Ladwig's application and deemed his motion filed in this Court on April 21, 2016. ECF No. 59.

DISCUSSION

Mr. Ladwig moves the Court to vacate his sentence pursuant to 28 U.S.C. § 2255 arguing that, after the Supreme Court's decision in Johnson , his ACCA enhanced 200 month sentence is in excess of the maximum authorized by law because his second degree burglary and attempted second degree rape convictions no longer qualify as violent felonies under the ACCA.

I. 28 U.S.C. § 2255

28 U.S.C. § 2255 outlines four grounds upon which a Court may grant relief to a prisoner who challenges his sentence: (1) "that the sentence was imposed in violation of the Constitution or laws of the United States"; (2) "that the court was without jurisdiction to impose such sentence"; (3) "that the sentence was in excess of the maximum authorized by law"; and (4) that the sentence is otherwise "subject to collateral attack." 28 U.S.C. § 2255(a). Although there are four categories, the range of claims that fall within the scope of § 2255 are narrow. United States v. Wilcox , 640 F.2d 970, 972 (9th Cir.1981). The asserted 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) ).

II. The Armed Career Criminal Act

18 U.S.C. § 924(e), known as the Armed Career Criminal Act, enhances the sentences of federal defendants who have three prior convictions "for a violent felony, or a serious drug offense, or both" from a statutory maximum of ten years to a statutory minimum of fifteen. 18 U.S.C. §§ 924(e)(1). The statute defines violent felony to include 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.

18 U.S.C. § 924(e)(2)(B) (emphasis added).

The italicized language in 18 U.S.C. § 924(e)(2)(B)(ii) is commonly known as the "residual clause," and is the portion of the statute invalidated by the Supreme Court's decision in Johnson . See Johnson , 135 S.Ct. at 2556–57, 2563. The remaining clauses, § 924(e)(2)(B)(i) (the "elements clause") and the first clause of § 924(e)(2)(b)(ii) (the "enumerated offenses clause"), are still effective. Id. at 2563. Recently, the Supreme Court held that its decision in Johnson announced a new substantive rule that applies retroactively to cases on collateral review. See Welch v. United States, ––– U.S. ––––, 136 S.Ct. 1257, 1268, 194 L.Ed.2d 387 (2016).

III. Legal Basis for Mr. Ladwig's Motion

In opposing Mr. Ladwig's motion, the government advances two arguments which, in essence, contend that Mr. Ladwig's request for relief is not actually based on Johnson and that accordingly, Mr. Ladwig is not entitled to the relief Johnson prescribes. First, the government argues that because Mr. Ladwig cannot affirmatively show that this Court relied on the residual clause in finding that Mr. Ladwig's prior convictions qualified as violent felonies, he is not entitled to relief under Johnson . ECF No. 65 at 7-8. The government cites no authority in support of this conclusion. Mr. Ladwig responds that he does not bear the burden of showing that the district court relied on the residual clause to establish constitutional error. ECF No. 66 at 2-7.

In so arguing, Mr. Ladwig makes a powerful analogy to habeas petitions based on unconstitutional jury instructions. In such cases, a "general verdict must be set aside if the jury was instructed that it could rely on any of two or more independent grounds, and one of those grounds is insufficient, because the verdict may have rested exclusively on the insufficient ground." See Zant v. Stephens , 462 U.S. 862, 881, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). Mr. Ladwig asserts that the Court should apply a similar principle here, where the record is unclear whether the Court relied on the residual clause or the remaining, constitutional clauses of the ACCA, and the Court's finding—that Mr. Ladwig's convictions for second degree burglary and attempted second degree rape were violent felonies—may have rested exclusively on the unconstitutional residual clause.

Mr. Ladwig's analogy is powerful because of the unique nature of Johnson –based claims.² As he astutely points out, ECF No. 66 at 2, with most claims of constitutional error there is no dispute about what action a district court took—the only question is whether the law deems that action unconstitutional. Here, however, because Mr. Ladwig conceded that his second degree burglary and attempted second degree rape convictions qualified as violent felonies,³ the Court never made explicit findings about which of the ACCA's three clauses qualified those convictions as predicate felonies. Utilizing the apt analogy to Zant , Mr. Ladwig has successfully demonstrated constitutional error simply by showing that the Court might have relied on an unconstitutional alternative when it found that Mr. Ladwig's prior convictions for burglary and attempted rape were violent felonies. That Mr. Ladwig's right to due process is at stake lends additional weight to this conclusion. In the context of a potential deprivation of such a critically important right, a showing that the sentencing court might have relied on an unconstitutional alternative ought to be enough to trigger inquiry into whether the sentencing court's consideration of that alternative was ultimately harmless. Because Mr. Ladwig has shown that the Court might have relied upon the unconstitutional residual clause in finding that his...