United States v. Whittington
| Docket Number | 1:15-cr-00265-DAD-BAM-1 |
| Decision Date | 18 August 2022 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-respondent v. JUSTIN WHITTINGTON, Defendant-movant. |
| Court | U.S. District Court — Eastern District of California |
ORDER DENYING DEFENDANT'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 (DOC. NO. 91)
Pending before the court is defendant Justin Whittington's pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.[1] (Doc. No. 91.) Defendant has also filed a motion to proceed in forma pauperis in this action. (Doc No. 92.) The court will grant defendant's motion (Doc No. 92) to proceed in forma pauperis; however, the court has considered the parties' briefing, and for the reasons set forth below, will deny defendant's motion to vacate, set aside, or correct his sentence.
On September 24, 2015, defendant was indicted in four separate counts related to his December 2012 racially-motivated attack on J.N., a Latino adult male resident of Oildale, California. (Doc. No. 1.) Specifically, defendant was charged with firing a shotgun at J.N. in order to scare him into leaving town. (Doc. No. 61 at 9-10.) In Count One, defendant was charged with violating 42 U.S.C. § 3631, interference with housing rights, by willfully intimidating and interfering through force and threat of force, with J.N.'s right to occupy a dwelling because of his race, color, and national origin. (Doc. No. 1 at 2.) In Count Two, defendant was charged with violating 18 U.S.C. § 924(c) by knowingly using, brandishing, and discharging a short-barreled shotgun during and in relation to a crime of violence, namely the interference with housing rights as charged in Count One.[2] (Id.) In Count Three, defendant was charged with violating 26 U.S.C. § 5861(d) by unlawfully possessing a short-barreled shotgun. (Id.) In Count Four, defendant was charged with violating 18 U.S.C. § 1001 by knowingly and willfully making false statements to an FBI agent. Specifically defendant was accused of falsely telling an FBI agent that another individual had offered defendant money to keep the shortbarreled shotgun in defendant's car. (Id. at 3-4.)
On November 29, 2016, the jury trial in this case commenced on Counts One, Two, and Four, following defendant's entry of a plea of guilty to unlawfully possessing a short-barreled shotgun as charged in Count Three. (Doc. No. 48.) On December 5, 2016, the jury returned a guilty verdict on Counts One, Two, and Four. (Doc. Nos. 55, 57.) Following trial, this court sentenced defendant to a 60 month term of imprisonment on Counts One, Three, and Four, to run concurrently with one another, and a mandatory consecutive term of 120 months' imprisonment on Count Two, for total prison term of 180 months. (Doc. Nos. 73, 74.)
On April 13, 2017, defendant appealed his judgment of conviction for use of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c) as charged in Count Two. (Doc. No. 76.)
On April 13, 2018, the Ninth Circuit Court of Appeals heard oral argument on defendant's appeal. (Doc. No. 89 at 1.) On May 1, 2018, the Ninth Circuit affirmed defendant's § 924(c) conviction. (Id.)
On August 2, 2019, defendant filed the pending motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. (Doc. No. 91.) Therein, defendant first argues that the court should vacate his conviction for violating § 924(c) because, he contends, the predicate crime of interference with housing rights in violation of 42 U.S.C. § 3631 is not categorically a crime of violence. (Id. at 5.) Defendant next contends that both this court and the Ninth Circuit erred in applying a modified categorical approach to classify interference with housing rights in violation of § 3631 as a crime of violence, and that relying on the modified categorical approach in this regard violated his due process rights. (Id. at 4-7.)
On August 13, 2019, this court issued an order setting a briefing schedule and directing the government to respond to defendant's § 2255 motion. (Doc. No. 93.) On October 31, 2019, defendant filed supplemental briefing expanding on his arguments and asserting that his pending § 2255 motion was timely filed. (Doc. No. 101.) On December 11, 2019, the government filed an opposition to the pending motion. (Doc. No. 102.) Therein, the government argues that defendant's claims are barred by the law of the case doctrine and cannot serve as a basis for the post-conviction relief he now seeks in his pending § 2255 motion. (Id. at 5.) On January 13, 2020, defendant filed his reply to the government's opposition. (Doc. No. 105.)
Title 28 U.S.C. § 2255 allows a federal prisoner to move the sentencing court to vacate, set aside, or correct the sentence if he claims the right to be released upon any of the following four grounds: (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; or (4) that the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a); see also United States v. Monreal, 301 F.3d 1127, 1130 (9th Cir. 2002).
To warrant the granting of relief, the movant must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see also United States v. Montalvo, 331 F.3d 1052, 1058 (9th Cir. 2003) (). Such relief is warranted only where a movant has shown “a fundamental defect which inherently results in a complete miscarriage of justice.” Davis v. United States, 417 U.S. 333, 346 (1974); see also United States v. Gianelli, 543 F.3d 1178, 1184 (9th Cir. 2008).
“[A] district court must grant a hearing to determine the validity of a petition brought under [§ 2255], ‘[u]nless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief.'” United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (quoting 28 U.S.C. § 2255). The court may deny a hearing if the movant's allegations, viewed against the record, fail to state a claim for relief or “are so palpably incredible or patently frivolous as to warrant summary dismissal.” United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir. 1996) (internal quotation marks omitted); see also United States v. Withers, 638 F.3d 1055, 1062-63 (9th Cir. 2011); United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003). To warrant a hearing, therefore, the movant must make specific factual allegations which, if true, would entitle him to relief. Withers, 638 F.3d at 1062; McMullen, 98 F.3d at 1159. Mere conclusory assertions in a § 2255 motion are insufficient, without more, to require the court to hold a hearing. United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980).
It is well-established that claims or arguments a defendant previously raised on direct appeal are not cognizable when presented in a § 2255 motion. Davis, 417 U.S. at 342 (); United States v. Redd, 759 F.2d 699, 701 (9th Cir. 1985) (); United States v. Currie, 589 F.2d 993, 995 (9th Cir. 1979) (); Egger v. United States, 509 F.2d 745, 748 (9th Cir. 1975) (“Issues raised at trial and considered on direct appeal are not subject to collateral attack under 28 U.S.C. § 2255.”) (citing Clayton v. United States, 447 F.2d 476, 477 (9th Cir. 1971) ()).
This bar against relitigating issues in a § 2255 proceeding is an application of the law of the case doctrine. See United States v. Jingles, 702 F.3d 494, 498 (9th Cir. 2012) (). “Under the ‘law of the case' doctrine, a court is ordinarily precluded from reexamining an issue previously decided by the same court, or a higher court, in the same case.” Richardson v. United States, 841 F.2d 993, 996 (9th Cir. 1988). “When a defendant has raised a claim and has been given a full and fair opportunity to litigate it on direct appeal, that claim may not be used as basis for a subsequent § 2255 petition.” United States v. Hayes, 231 F.3d 1132, 1139 (9th Cir. 2000) ().
The Ninth Circuit has recognized exceptions justifying a court departing from the “law of the case” doctrine 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.” Gonzalez v. Arizona, 677 F.3d 383, 390 n.4 (9th Cir. 2012) (en banc) (internal quotation marks and citation omitted).
Title 18 U.S.C. § 924(c)(1)(A)(iii) provides that any defenda...
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