United States v. Stuker
| Decision Date | 09 June 2021 |
| Docket Number | Cause No. CR 11-096-BLG-DLC,Cause No. CV 20-108-BLG-DLC |
| Parties | UNITED STATES OF AMERICA, Plaintiff/Respondent, v. MICHAEL AARON STUKER, Defendant/Movant. |
| Court | U.S. District Court — District of Montana |
ORDER DENYING § 2255 MOTION AND GRANTING CERTIFICATE OF APPEALABILITY
On July 17, 2020, the Ninth Circuit Court of Appeals authorized Defendant/Movant Stuker to file in this Court a second motion (Doc. 169-2 at 8-21) under 28 U.S.C. § 2255. See Order (Doc. 169-3). The United States has filed an answer (Doc. 173) and Stuker a reply (Doc. 174).
On July 22, 2011, Special Agent Jordan Kuretich of the Federal Bureau of Investigation swore out a complaint charging Stuker and his brother, Joshua Swan, with witness intimidation, a violation of 18 U.S.C. §§ 1512(a)(1)(A) and 2. The complaint alleged that, on July 1, 2011, Stuker and Swan went to the apartment of one R.B., whom they had reason to believe would be a witness against Joe Lira, a friend of theirs. Lira was facing trial within the month on federal drug and gun charges. According to the complaint, Stuker pointed a gun at R.B. and said, "I hope you don't plan on doing anything with Joe." R.B. reported the incident when he met with law enforcement officers to prepare for his testimony at Lira's trial, which was then three days away. See Compl. (Doc. 1) at 1-2; see also Presentence Report ¶ 9.
On August 19, 2011, a grand jury charged Stuker and Swan with witness tampering in violation of 18 U.S.C. §§ 1512(a)(2)(A) and 2 (Count 1), and possessing a firearm in furtherance of a crime of violence in violation of 18 U.S.C. §§ 924(c) and 2 (Count 2). See Indictment (Doc. 18) at 2-3.1
Stuker and Swan stood trial before a jury. Swan was acquitted, but the jury found Stuker guilty on both counts. See Verdicts (Docs. 115, 116).
A presentence report was prepared. Stuker's advisory guideline range on Count 1 was 46 to 57 months. The sentence on Count 2 was at least seven years, consecutive to Count 1. See Sentencing Tr. (Doc. 153) at 10:17-12:10; 18 U.S.C. § 924(c)(1)(A)(ii), (D)(ii); Harris v. United States, 536 U.S. 545, 556 (2002), overruled by Alleyne v. United States, 570 U.S. 99, 103 (2013); see also Presentence Report ¶¶ 54-64, 73. He was sentenced to serve 46 months on Count 1 and 84 months on Count 2 for a total of 130 months in prison, to be followed bya five-year term of supervised release. See Minutes (Doc. 142); Judgment (Doc. 143) at 2-3.
Stuker appealed. His conviction and sentence were affirmed. See United States v. Stuker, No. 12-30230 (9th Cir. Nov. 7, 2013) (unpublished mem disp.) (Doc. 155). His conviction became final on February 5, 2014. See Gonzalez v. Thaler, 565 U.S. 134, 150 (2012).
Stuker timely filed his first motion under 28 U.S.C. § 2255 on October 31, 2014. See Mot. § 2255 (Docs. 157). The motion and a certificate of appealability were denied on June 23, 2015. See Order (Doc. 165). Stuker did not appeal.
On October 1, 2019, Stuker applied to the Ninth Circuit Court of Appeals for leave to file a second motion under 28 U.S.C. § 2255. As noted above, on July 17, 2020, the appellate court granted Stuker leave to file his second motion in this Court. See 28 U.S.C. §§ 2255(h), 2244(b)(3)(A).
Stuker challenges the validity of his conviction on Count 2, the gun count under 18 U.S.C. § 924(c). As relevant here, § 924(c) prohibits the possession of a firearm in furtherance of a "crime of violence"—in this case, witness tampering, a violation of 18 U.S.C. § 1512(a)(2)(A), as alleged and proved in Count 1. He contends that witness tampering does not fit the legal definition of a "crime of violence."
Section 924(c) contains two definitions of a "crime of violence":
18 U.S.C. § 924(c)(3).
In United States v. Davis, ___ U.S. ___, 139 S. Ct. 2319 (2019), the Supreme Court held that subsection (B), commonly called the "residual clause," "provides no reliable way to determine which offenses qualify as crimes of violence and thus is unconstitutionally vague." Id. at 2324; see also Johnson v. United States, 576 U.S. 591, 597 (2015) ("Johnson II")2 (); Sessions v. Dimaya, ___ U.S. ___, 138 S. Ct. 1204, 1216 (2018) ().
Subsection (B) can no longer support a conviction under § 924(c), but subsection (A) remains valid. Thus, the United States argues that Stuker is not entitled to relief because his conviction under § 924(c) did not rest on the residual clause but on the "elements clause," § 924(c)(3)(A).
The parties' briefs raise two questions. First, may Stuker proceed with his motion, even though it is his second under 28 U.S.C. § 2255? And second, if he may proceed, is he entitled to relief?
The Court of Appeals granted Stuker leave to file a second motion in this Court. See Order (Doc. 169-3). But obtaining leave to file in the district court is only the first of two procedural hurdles Congress imposes on second or successive motions under 28 U.S.C. § 2255. A district court must "dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements" for relief specially applied to second or successive motions. 28 U.S.C. §§ 2244(b)(4), 2255(h)(2).
28 U.S.C. § 2255(h)(2) requires Stuker to show that his motion "contain[s]" a "new rule of constitutional law" that has been "made retroactive to cases on collateral review by the Supreme Court" and that "was previously unavailable."
The Court asked the parties to "discuss the significance, if any," of 28 U.S.C. § 2244(b)(4). See Order (Doc. 172) at 2. The United States does not claim that Davis did not announce a new rule, nor does it argue that the Supreme Court has yet to make Davis retroactively applicable to cases on collateral review. TheCourt will accept that those requirements are met. See, e.g., United States v. Clark, ___ Fed. Appx. ___, 2021 WL 1652042 at *3, No. 20-10364, slip op. at 5 (5th Cir. Apr. 27, 2021) (per curiam) (unpublished mem. disp.) ( district court's denial of second motion under § 2255 and holding that merits panel was "constrained to follow other panels of this court in applying Davis retroactively to a successive § 2255 motion"); see also In re Harris, 988 F.3d 239, 239 (5th Cir. 2021) (per curiam); In re Thomas, 988 F.3d 783, 788-90 (4th Cir. 2021); King v. United States, 965 F.3d 60, 64 (1st Cir. 2020); In re Franklin, 950 F.3d 909, 910 (6th Cir. 2020); In re Mullins, 942 F.3d 975, 979 (10th Cir. 2019); In re Matthews, 934 F.3d 296, 301 (3d Cir. 2019); In re Hammoud, 931 F.3d 1032, 1039 (11th Cir. 2019) (); but see Harris, 988 F.3d at 239-41 () ("[I]t seems odd that we're all just assuming the Supreme Court would want us to extend Johnson and Welch to a new statute."); In re Hall, 979 F.3d 339, 346-47 (5th Cir. 2020) ().
The answer to this question seems obvious. Section 2255(h)(2) requires Stuker to show his motion "contain[s]" a claim under Davis. At page 2 of his motion, Stuker says his conviction under § 924(c) "should be vacated . . . in lightof United States v. Davis, 139 S. Ct. 2319 (2019)." Mot. § 2255 (Doc. 169-2) at 2. Ergo, the motion contains a claim under Davis. If more were needed, Stuker can also show he was indeed convicted under § 924(c). But it is a little more complicated than that.
The Ninth Circuit interprets the word "contain" to require the defendant to show that his claim "relies on" the new rule. See United States v. Geozos, 870 F.3d 890, 894-95 (9th Cir. 2017) (applying 28 U.S.C. § 2244(b)(2)(A)), implied overruling on other grounds recognized by Ward v. United States, 936 F.3d 914, 919 (9th Cir. 2019) (discussing Stokeling v. United States, ___ U.S. ___, 139 S. Ct. 544, 553 (2019)).
The United States argues that Stuker's motion does not rely on Davis because his conviction for witness tampering qualifies as a "crime of violence" under the elements clause, § 924(c)(3)(A). This argument could have two separate meanings. The second goes to the merits of the claim and asks whether, under current case law, witness tampering is a crime of violence under the elements clause. But the first, discussed here as a procedural defense to Stuker's motion, asks whether case law at the time Stuker's case was litigated clearly held that witness tampering was a crime of violence under the elements clause and not under the residual clause.
In Geozos, a case involving Johnson II's application as a "new rule," thecourt explained that "a claim does not 'rely on' Johnson if it is possible to conclude, using both the record before the [district] court and the relevant background legal environment at the time," that the court's decision "did not rest on the residual clause." Id. at 896. Applying this approach, the Court has located appellate cases involving convictions under 18 U.S.C. § 924(c) that are predicated on witness tampering under 18 U.S.C. § 1512(a)(2)(A). But it has not located appellate cases that decide whether witness tampering under § 1512(a)(2) is a "crime of violence" under the...
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