United States v. Strain, Case No. 3:97-cr-00004-TMB-SAO-1

CourtUnited States District Courts. 9th Circuit. District of Alaska
Decision Date27 September 2019
Docket NumberCase No. 3:97-cr-00004-TMB-SAO-1


Case No. 3:97-cr-00004-TMB-SAO-1


September 27, 2019



The matter comes before the Court on Defendant Barbara Strain's Motion for Reconsideration.1 Strain requests that the Court reconsider its Order2 denying her Motion to Vacate, Set Aside, or Correct her sentence under 28 U.S.C. § 2255 (the "Motion to Vacate").3 Pursuant to L.Civ.R. 7.3(h), the Court did not request the United States file a response. Strain did not request oral argument, and the Court finds it would not be helpful. For the reasons stated below, Strain's Motion for Reconsideration is GRANTED and, on reconsideration, Strain's Motion to Vacate is DENIED.


The Court assumes the parties are familiar with the relevant background of this case and hereby reincorporates the background facts as detailed in the Initial Report and Recommendation at docket 273. On May 17, 2019 the Magistrate Judge submitted the Initial Report and

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Recommendation, which recommended the Court deny Strain's Motion to Vacate.4 The Magistrate Judge reasoned that Strain's motion was time-barred under § 2255 because, despite Strain's arguments, the Supreme Court had not established that the residual clause in 18 U.S.C. § 924(c)(3)(B) was unconstitutionally void for vagueness.5 The Court adopted and accepted the recommendation of the Magistrate Judge in full and denied Strain's Motion to Vacate.6

On June 24, 2019, Strain filed a Motion for Reconsideration of her Motion to Vacate pursuant to Fed. R. Civ. P. 60(b)(6).7 She argues that the Supreme Court decision Davis v. United States8—announced earlier that day—held the residual clause under 18 U.S.C. § 924(c)(3)(B) was unconstitutionally void for vagueness.9 Therefore, Strain argues, her motion is now timely, and the Court is not precluded from ruling on her claims. The matter is now ripe for resolution.


A. Rule 60 Motion to Reconsider

A motion to reconsider a final appealable order is appropriately brought under either Fed. R. Civ. P. 59(e) or 60(b).10 Under Rule 60(b) courts may relieve a party from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to

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move for a new trial under Rule 59(b); (3) fraud . . ., misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.11

Ninth Circuit law counsels that reconsideration is "an extraordinary remedy, to be used sparingly and in the interests of finality and conservation of judicial resources."12 The Court may reconsider an order only "where: '(1) the decision is clearly erroneous and its enforcement would work a manifest injustice, (2) intervening controlling authority makes reconsideration appropriate, or (3) substantially different evidence was adduced.'"13

B. Section 2255 Motion to Vacate, Set Aside, or Correct.

18 U.S.C. § 2255 provides that a prisoner has a right to be released where their 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 . . . ." The defendant generally has

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one year from the date of a final judgment to file a motion to vacate under § 2255.14 However, when a defendant moves to vacate his sentence on the basis of a newly recognized constitutional right, § 2255's statute of limitations begins on "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review."15


Strain requests that the Court reconsider its ruling on her Motion to Vacate in light of the Supreme Court's recent decision in United States v. Davis16 For the reasons discussed below, Strain's Motion for Reconsideration is GRANTED and, on reconsideration, Strain's Motion to Vacate, Set Aside, or Correct is DENIED.

A. Strain is Entitled to Reconsideration of Her Motion to Vacate in Light of Recent Changes in the Law.

The Court initially denied Strain's motion to vacate because she had not established that 18 U.S.C. § 924(c)'s residual clause was unconstitutionally void for vagueness under then-existing Supreme Court precedent.17 However, in the weeks after the Court denied Strain's motion, the majority in Davis held that the residual clause, under 18 U.S.C. § 924(c)(3)(B) was unconstitutionally void for vagueness.18 Given this intervening authority, the Court finds that reconsideration of Strain's motion to vacate is appropriate under §2255(f)(3).

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Accordingly, Strain's Motion for Reconsideration is GRANTED.

B. Strain is Not Entitled to Habeas Relief

The Court now reconsiders the merits of Strain's Motion to Vacate. Strain claims that she was wrongfully convicted under 18 U.S.C. § 924(c).19 At trial, Strain was convicted of two counts of bank robbery, in violation of 18 U.S.C. §§ 2113(a) & (d); three counts of Using or Carrying a Firearm in Relation to a Crime of Violence, in violation of 18 U.S.C. § 924(c); one count of Interference with Commerce by Robbery (i.e. Hobbs Act robbery), in violation of 18 U.S.C. § 1951(a); and three counts of being a Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g).20 Strain, through counsel, now challenges her convictions under 18 U.S.C. § 924(c). She claims that her convictions under § 924(c) were premised on the residual clause of 18 U.S.C. § 924(c)(3)(B), which as previously discussed, is unconstitutionally void for vagueness.21

Title 18 U.S.C. § 924(c)(1)(A) provides that "[a]ny person who, during and in relation to any crime of violence . . . for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm" shall be sentenced to an enhanced penalty. A "crime of violence" is given two definitions. First, 18 U.S.C. § 924(c)(3)(A) (the "force clause") defines a crime of violence as a felony, which "has as an element the use, attempted use, or threatened use of physical force against the person or property of another." Alternatively, 18 U.S.C. § 924(c)(3)(B) ("the residual clause") defines a crime of violence as a felony, which "by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."

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Strain contends that her armed bank robbery conviction and her Hobbs Act robbery conviction do not satisfy the definition of "crime of violence."22 She argues that neither crime categorically requires the intentional use of violent force as required by the force clause, 18 U.S.C. § 924(c)(3)(A).23 Additionally, Strain argues that in light of Davis § 924(c)'s residual clause cannot be a basis for her convictions under § 924(c).24 In order to prevail Strain must show that her claims are timely and must also show that she is entitled to habeas relief on the merits.25

1. Whether Strain's Claims are Timely

Before proceeding to the merits of Strain's claims, the Court must first address whether her Motion to Vacate is timely. A petition under § 2255 that is based on a newly recognized constitutional right must be filed within one year of the Supreme Court decision first recognizing that new right.26 Further, this relief is only available if that right has been "made retroactively applicable to cases on collateral review."27

Strain's argues Davis "constitutes a 'new' rule of substantive constitutional law that applies retroactively to cases on collateral review."28 And, according to Strain, she is entitled to habeas relief because her convictions were premised on this unconstitutional definition.29 Undoubtably,

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Davis creates a new constitutional rule. Davis found that 18 U.S.C. § 924(c)(3)(B)'s definition of "crime of violence" was unconstitutionally vague.30 However, neither the Supreme Court nor the Ninth Circuit has ruled whether Davis is retroactively applicable to cases on collateral review. In fact, the dissenting opinion in Davis acknowledged that the majority opinion left this question unsettled:

Many offenders who have already committed violent crimes with firearms—and who have already been convicted under § 924(c)—may be released early from prison. The Court's decision will apply to all defendants whose convictions are not yet final on direct review and who preserved the argument. With the benefit of this Court's decision, many dangerous offenders who received lengthy prison sentences as a result of their violent conduct might walk out of prison early. And who knows whether the ruling will be retroactive?31

In the absence of a specific finding by higher courts, the Court looks to the general framework governing retroactivity articulated in Teague v. Lane.32 Generally, new rules of criminal procedure do not apply retroactively.33 However, this rule is not absolute, as there are two categories of new rules that apply retroactively: (1) new substantive rules; and (2) new "watershed rules of criminal procedure" which "implicate[ ] the fundamental fairness and accuracy of the criminal proceeding."34 "A rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes."35 "This includes decisions that narrow the scope of a criminal statute by interpreting its terms, as well as...

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