ORDER

DAVID G. CAMPBELL, District Judge.

Magistrate Judge Deborah M. Fine has issued a Report and Recommendation that the Court deny Petitioner's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 1). Doc. 26 ("R&R"). Petitioner filed an objection (Doc. 27) and the government replied (Doc. 28). The Court will adopt the R&R.

I. Background.

On October 7, 1999, Petitioner Shawn Tyler Percy was found guilty by a jury of second degree murder in violation of 18 U.S.C. § 1111, and discharging a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(iii). Doc. 1, ¶ 9. Petitioner was sentenced to 280 months in prison, consisting of 160 months on the murder count and 120 months on the § 924(c) count. Id.

On June 26, 2016, Petitioner, through counsel, filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. Id. Petitioner asserts that his sentence is unconstitutional under Johnson v. United States, 135 S.Ct. 2551 (2015). Id. In Johnson, the Supreme Court held that the residual clause in the definition of a "violent felony" in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B) ("ACCA"), is unconstitutionally vague. 135 S. Ct. at 2557. Petitioner argues that his sentence under 18 U.S.C. § 924(c)(1)(A)(iii) is likewise unconstitutional. Doc. 1. Petitioner's sentence expiration date on the second degree murder charge alone (not considering the § 924(c) sentence) was July 7, 2016. Doc. 11.

On September 6, 2016, the government sought a stay of these proceedings pending the Supreme Court's decision in Sessions1 v. Dimaya, No. 15-1498 (cert. granted Sept. 29, 2016), and the Ninth Circuit's decision in United States v. Begay, No. 14-10080. Doc. 5. On December 12, 2016, the Court denied the stay request. Doc. 18.

The government subsequently filed a limited answer to Petitioner's motion, arguing that: (1) the motion is untimely, and (2) the motion is procedurally barred. Doc. 20. On April 13, 2017, Judge Fine issued an R&R concluding that Petitioner's motion is not untimely but is procedurally barred, and recommending that the Court deny the motion. Doc. 26.

II. Standard of Review.

The Court must undertake de novo review of those portions of the R&R to which specific objections are made. The Court may accept, reject, or modify, in whole or in part, the findings or recommendations. Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1).

III. Analysis.

Petitioner argues that his motion is not procedurally barred, and asks the Court to grant his motion or grant Petitioner a certificate of appealability. Doc. 27.

A. Procedural Default.

"Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent." Bousley v. U.S., 523 U.S. 614, 622 (1998) (internal quotation marks and citations omitted).

Cause may be shown when a claim is "novel." See Reed v. Ross, 468 U.S. 1, 15 (1984). A claim can be considered novel where a Supreme Court decision: (1) "explicitly overrule[s] one of [the Court's] precedents"; (2) "may overtur[n] a longstanding and widespread practice to which th[e] Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved"; or (3) when the Court "`disapprove[s] a practice th[e] Court arguably has sanctioned in prior cases.'" Id. at 17. In Johnson, the Supreme Court expressly overruled its own precedent: "We hold that imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution's guarantee of due process. Our contrary holdings in James [v. United States, 550 U.S. 192 (2007)] and Sykes [v. United States, 564 U.S. 1 (2011)] are overruled." 135 S. Ct. at 2557.

In her R&R, Judge Fine found that Petitioner's claim was novel under the first condition set forth in Ross. Doc. 26 at 6-7. Neither party objects to this finding.

Next, a petitioner must establish prejudice. To establish prejudice, a petitioner must "demonstrate[e] `not merely that the errors . . . [in the proceedings] created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire [proceedings] with error of constitutional dimensions.'" United States v. Braswell, 501 F.3d 1147, 1150 (9th Cir. 2007). Petitioner must show a "reasonable probability" that, without the error, the result of the proceedings would have been different. Strickler v. Greene, 527 U.S. 263, 289 (1999).

In the R&R, Judge Fine concluded that second degree murder remains a crime of violence after the U.S. Supreme Court's decision in Johnson and after Fernandez-Ruiz, 466 F.3d at 1129 and its Ninth Circuit progeny. Doc. 26 at 7-12. Thus, Judge Fine concluded that Petitioner was unable to show that he suffered actual prejudice.

Petitioner objects to Judge Fine's conclusion that second degree murder remains a crime of violence. Doc. 27. Petitioner argues that if second degree murder is properly categorized as not being a crime of violence, he can establish prejudice as required by step two. Id.

B. Is Second Degree Murder a Crime of Violence?

Judge Fine summarized Petitioner's argument as follows:

Doc. 26 at 7-8.

The Ninth Circuit has explained that before its decision in Fernandez-Ruiz, it was "well established in this circuit that crimes involving the reckless use of force could be crimes of violence[,] based on the conclusion that `recklessness requires conscious disregard of a risk of a harm that the defendant is aware of.'" Fernandez-Ruiz, 466 F.3d at 1126 (quoting United States v. Trinidad-Aquino, 259 F.3d 1140, 1146 (9th Cir. 2001)). But after the U.S. Supreme Court's decision in Leocal v. Ashcroft, 543 U.S. 1, 12 (2004), the Ninth Circuit reversed direction in Fernandez-Ruiz. Id. The Fernandez-Ruiz court recognized that the Leocal Court reserved the question of whether crimes of violence may include the reckless use of force. Id. at 1127-29. But the Ninth Circuit concurred with decisions from the Third and Fourth Circuits that the "reasoning of Leocal — which merely holds that using force negligently or less is not a crime of violence — extends to crimes involving the reckless use of force." Id. at 1127-29. The Ninth Circuit found the Third Circuit's opinion in Oyebanji v. Gonzales, 418 F.3d 260 (3d Cir. 2005), persuasive. Id. Oyebanji addressed the conviction of a Nigerian citizen under New Jersey law for vehicular homicide. Id. at 1129. The state conviction required proof of recklessness, defined in part as "`consciously disregard[ing] a substantial and unjustifiable risk that [a] material element [of an offense] exists or will result from [the actor's] conduct.'" Id. (quoting Oyebanji, 418 F.3d at 263 n. 4, in turn quoting N.J. Stat. Ann. § 2C:2-2(3)). Oyebanji concluded that "even though New Jersey's definition of recklessness involved conscious disregard of a substantial and unjustifiable risk, the reckless use of force was not sufficiently `intentional' to prevent an offense from being accidental." Fernandez-Ruiz, 466 F.3d at 1129. The Ninth Circuit found that the petitioner's misdemeanor domestic violence conviction was not a categorical crime of violence under 18 U.S.C. § 16(a). Id. at 1132. The Ninth Circuit held that "[i]n light of Leocal, we expressly overrule our cases holding that crimes of violence under 18 U.S.C. § 16 may include offenses committed through the reckless, or grossly negligent, use of force." Id.

Since its decision in Fernandez-Ruiz, the Ninth Circuit has attempted to clarify its position on crimes of violence. In Covarrubias Teposte v. Holder, 632 F.3d 1049 (9th Cir. 2011), the Ninth Circuit considered whether a petitioner's California state felony conviction for shooting at an inhabited dwelling or vehicle was categorically a crime of violence and thus an aggravated felony that would make the petitioner, an alien, removable. Id. at 1051. The Ninth Circuit characterized its holdings on the definition of a crime of violence in U.S.C. §16, post Fernandez-Ruiz, as follows:

Id. at 1053 (emphasis in original).

Petitioner argues Covarrubias Teposte recognizes a "bright-line rule between crimes that require intentional conduct, which can be crimes of violence, and crimes through `very dangerous and violent conduct' that nevertheless is not intentional, which are not crimes of violence." Doc. 27 at 4. Judge Fine rejected Petitioner's argument:

Doc. 26 at 10-11.

The Ninth Circuit has not applied the rule of Fernandez-Ruiz and its progeny to the crime of second degree murder. Rather, since Fernandez-Ruiz was decided in 2006, the Ninth Circuit has explicitly stated that second degree murder is a crime of violence. See, e.g., United States v. Begay, 567 F.3d 540, 552 (9th Cir. 2009), overruled on other grounds, 673 F.3d 1038 (9th Cir. 2011) ("Both first- and second-degree murder constitute crimes of violence"); United States v. J.J., 704 F.3d 1219, 1222 (9th Cir. 2013) ("In this case, there is no question that . . . second degree murder, if committed by an adult, would be a felony crime of violence."). The opinions in United States v. Begay and United States v. J.J. were each filed after that in Fernandez-Ruiz, and United States v. J.J. was filed after the opinion in Covarrubias v. Teposte.

Additionally, Ninth Circuit precedent upholds convictions for second-degree murder under 18 U.S.C. § 1111 and corresponding convictions under § 924(c)(1)(A). See United States v. Houser, 130 F.3d 867, 868 (9th Cir. 1997); United States v. Andrews, 75 F.3d 552, 553 (9th Cir. 1996); United States v. Wilson, 221 Fed. App'x. at 552.

In the R&R, Judge Fine concluded as follows:

Doc. 26 at 11-12. The Court agrees.

Ninth Circuit case law is clear that second degree murder requires a higher degree of culpability than the plain recklessness found insufficient in Fernandez-Ruiz. See, e.g., Pineda-Doval, 614 F.3d at 1040 ("second degree murder require[s] a finding of extreme recklessness evincing disregard for human life, not simple recklessness."); Lesina, 833 F.2d at 159 ("disregard for human life becomes more callous, wanton or reckless, and more probative of malice aforethought, as it approaches a mental state comparable to deliberation and intent."); Celestine, 510 F.2d at 459. This heightened standard differs from the standard found incapable of supporting a crime of violence in Fernandez-Ruiz.

Because second degree murder requires a higher degree of recklessness than the Ninth Circuit found insufficient for a crime of violence in Fernandez-Ruiz, and multiple Ninth Circuit cases, including cases decided since Fernandez-Ruiz, have held that second degree murder is a crime of violence, the Court finds that second degree murder is a crime of violence for purposes of § 924(c) and will adopt Judge Fine's recommendation.

IT IS ORDERED: