United States v. Richardson, 1:97-cr-05129-NONE-3
| Decision Date | 29 June 2021 |
| Docket Number | 1:97-cr-05129-NONE-3 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Respondent, v. LAWRENCE ROBINSON, Defendant-Movant. |
| Court | U.S. District Court — Eastern District of California |
(DOC. NOS. 405, 414)
Movant Lawrence Robinson has been serving a life sentence since 1999 for interfering with commerce by robbery in violation of 18 U.S.C. § 1951, carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924, and causing a death by use of a firearm during a crime of violence, also in violation of 18 U.S.C. § 924. Approximately fourteen and thirteen years ago respectively, movant brought his first and second motions challenging his life sentence under 28 U.S.C § 2255, and both motions were denied. (See Doc Nos. 351, 372.) He now brings, through counsel, his third challenge by way of two § 2255 motions, asserting two different claims for relief. (Doc. Nos. 405, 414.)
In his first claim, movant argues that he was wrongfully convicted of a “crime of violence” because the federal statute defining “crime of violence” in this context is unconstitutionally vague in light of the new substantive rule established by the U.S. Supreme Court in Johnson v. United States, 576 U.S. 591 (2015) (“Johnson II”), and made retroactive by the decision in Welch v. United States,__ U.S.__, 136 S.Ct. 1268 (2016). (Doc. No. 405, Attach. 1 at 1.) In his second claim, movant contends, based on the alleged discovery of new evidence and another new substantive rule established by the Supreme Court in Lafler v. Cooper, 566 U.S. 156 (2012), and Missouri v. Frye, 566 U.S. 134 (2012), that his attorneys provided him ineffective assistance in his criminal case by failing to communicate to him a formal plea offer, which, if accepted, would have avoided the imposition of his mandatory life sentence. (Doc. No. 414 ¶¶ 4, 9.) Movant claims he would have accepted the plea offer had it been made known to him by his attorneys and, as a result, he would not now be serving a life sentence. (Id. ¶ 21.)
The government has opposed both of movant’s pending § 2255 motions, arguing that Johnson II, Frye, and Lafler are inapplicable here, and thus movant is not entitled to relief with respect to his convictions and sentences which remain valid. (Doc. Nos. 411, 416.) The government also disputes the assertion that movant’s attorneys did not communicate the government’s plea offer to him. (Doc. No. 416 at 8–10.) Movant has filed a reply. (Doc. Nos. 413, 419). Having considered the parties’ submissions, the record in this case, and the applicable law, the court concludes that the government’s arguments are, by and large, well-taken. Accordingly, and for the reasons explained below, the court will deny the pending § 2255 motions and decline to issue a certificate of appealability.
In 1997, by way of an initial indictment and two superseding indictments, movant was charged with participating in a series of robberies, which included two counts of interfering with commerce by robbery, two counts of carrying a firearm during a robbery, two counts of causing a death during the commission of a robbery, one count of theft of a firearm during a residential robbery, one count of carrying a firearm during a residential robbery, one count of attempting to possess cocaine and cocaine base with intent to distribute, one count of carrying a firearm during a drug trafficking crime, and one count of causing a death by using a firearm during a drug trafficking crime. (Doc. Nos. 1, 47, 54, 411, & 416.) Prior to trial, the charge of carrying a firearm during a residential robbery was dismissed by the court, and the three drug related charges were dismissed on the motion of the government. (Doc. Nos. 411 at 2–3; 416 at 1–2.) After a jury trial spanning late January and early February of 1999, movant was convicted on count seven, for interference with commerce by robbery and aiding and abetting in violation of 18 U.S.C. § 1951(a); count eight, for carrying a firearm during a “crime of violence” in violation of 18 U.S.C. § 924(c)(1); and count nine, for death caused by use of a firearm during a “crime of violence” in violation of 18 U.S.C. § 924(j)(1)-(2).[1] (Doc. No. 311 at 1.) Movant was sentenced to life imprisonment on count nine for death caused by use of a firearm during a crime of violence; 240 months of imprisonment on count seven for interference with commerce by robbery, with that term to be served concurrently with the sentence imposed on count nine; and 60 months of imprisonment on count eight for carrying a firearm during a robbery, with that term to be served consecutively to the sentences imposed as to counts seven and nine. (Id. at 1–2.)
Title 28 U.S.C. § 2255 allows a federal prisoner to move “to vacate, set aside or correct the sentence” on “the ground that the 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. “In general, § 2255 provides the exclusive procedural mechanism by which a federal prisoner may test the legality of detention.” Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000).
This is movant’s third attempt to challenge his sentence under § 2255. The Antiterrorism and Effective Death Penalty Act (“AEDPA”), which “codified the judicially established principles of the abuse-of-the-writ doctrine,”[2] “greatly restrict[s] the power of federal courts to award relief to [] prisoners who file second or successive habeas corpus applications.”[3] Jones v. Ryan, 733 F.3d 825, 841–42 (9th Cir. 2013) (alteration in original) (quoting Tyler v. Cain, 533 U.S. 656, 661 (2001)). AEDPA thus generally limits a petitioner to “one motion under § 2255,” and petitioner “may not bring a ‘second or successive motion’ unless [he] meets the exacting standards of 28 U.S.C. § 2255(h).” United States v. Washington, 653 F.3d 1057, 1059 (9th Cir. 2011) (alteration in original) (emphasis added); see also Goodrum v. Busby, 824 F.3d 1188, 1191–92 (9th Cir. 2016) (). One of those exacting standards requires that, “[b]efore the district court can entertain a second or successive § 2255 motion, the appropriate court of appeals must certify the motion,” if “the applicant makes a prima facie showing” as provided by 28 U.S.C. § 2244. Tate v. United States, 982 F.3d 1226, 1227 (9th Cir. 2020) (emphasis added). A “prima facie showing” simply means that the petitioner or applicant has made “a sufficient showing of possible merit to warrant a fuller exploration by the district court.” Henry v. Spearman, 899 F.3d 703, 705–06 (9th Cir. 2018) (citation omitted). If the petitioner fails to first obtain the certification from the circuit court before filing a “second or successive motion” in the district court, “the district court lacks jurisdiction to consider the second or successive application.” United States v. Lopez, 577 F.3d 1053, 1061 (9th Cir. 2009).
Should the circuit court certify the filing of a “second or successive motion,” the district court must then “conduct a thorough review of all allegations and evidence presented by the prisoner to determine whether the motion meets [other] statutory requirements for the filing of a second or successive motion.” United States v. Villa-Gonzalez, 208 F.3d 1160, 1165 (9th Cir. 2000) (alteration in original) (citing 28 U.S.C.A. § 2244(b)(4)); see also Villa-Gonzalez, 208 F.3d at 1164 (). To establish that a second or successive motion was properly filed, § 2255(h) also requires movant to show:
28 U.S.C. § 2255(h) (emphasis added). If the movant fails to make such showing, the “district court shall dismiss any claim presented in a second or successive application that the court of appeals has authorized.” § 2244(b)(4); see also Villa-Gonzalez, 208 F.3d at 1164.
Here following the procedural requirements of AEDPA, movant properly sought authorization from the Ninth Circuit to file a second or successive § 2255 motion by way of two applications. (Doc. No. 414, ¶ 2.) The first application is based on a new substantive rule purportedly articulated under Johnson II; the second is based on another new substantive rule purportedly established in Lafler and Frye. (Doc. Nos. 405, Attach. 1 at 1; 414, ¶¶ 1–2, 4, 9, 22– 23.) In early 2017, the Ninth Circuit consolidated both of movant’s applications and authorized him to file a second or successive motion in this court.[4] (Doc. No. 404 at 1.) The court thus has jurisdiction to consider movant’s two new claims for relief under § 2255.
To reiterate, movant presents his two claims separately as two § 2255 motions in this district court. The first claim is premised on the theory that 18 U.S.C. § 924(c)(3), the criminal statute upon which movant’s convictions for carrying a firearm during a crime of violence and causing a death...
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