ORDER DENYING DEFENDANT'S MOTION FOR RELEASE ON BAIL, AND REQUESTING SUPPLEMENTAL BRIEFING

J. MICHAEL SEABRIGHT, Chief District Judge.

I. INTRODUCTION

Before the court are (1) Defendant Scott Michael Carter's ("Defendant") Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("§ 2255 Motion"), Doc. No. 79; and (2) his corresponding Motion for Release on Bail, seeking release while the court considers the § 2255 Motion, Doc. No. 81. Defendant argues that his 132-month sentence, imposed on August 27, 2007 under the Armed Career Criminal Act, 18 U.S.C. § 924(e) ("ACCA"), is unconstitutional under Johnson v. United States, 135 S.Ct. 2551 (2015), and Descamps v. United States, 133 S.Ct. 2276 (2013).

Based on the following, the Motion for Release on Bail is DENIED. The court, however, requests supplemental briefing from the parties as to whether any exception might apply to the one-year limitation period in 28 U.S.C. § 2255(f).1

II. FACTUAL AND LEGAL BACKGROUND

On April 5, 2007, pursuant to a March 30, 2007 Memorandum of Plea Agreement ("Plea Agreement"), Defendant pled guilty to two Counts of a March 29, 2007 Indictment: (1) conspiracy to distribute, and to possess with intent to distribute, methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1) & 841(b)(1)(B); and (2) felon in possession of a firearm subsequent to three convictions for violent felonies, in violation of 18 U.S.C. §§ 921(g)(1) & 924(e)(1). Doc. Nos. 37, 38. As to the felon-in-possession Count, the Indictment charged Defendant with having three prior felony convictions for first degree burglary under Hawaii law. Doc. No. 27. In the Plea Agreement—which was accepted by the court on August 20, 2007, Doc. No. 53—Defendant stipulated factually and legally to the following regarding his prior burglary convictions:

Doc. No. 37, Plea Agreement at 3-4.

Under the ACCA, if a defendant is convicted of a firearms offense and has three or more prior convictions of "a violent felony or a serious drug offense, or both," the defendant is subject to a mandatory minimum fifteen-year sentence. 18 U.S.C. § 924(e)(1). The ACCA defines "violent felony" as follows:

18 U.S.C. § 924(e)(2). The first clause in § 924(e)(2)(B)(ii) ("is burglary, arson, or extortion, involves use of explosives") is referred to as the "enumerated offenses clause," while the second clause ("or otherwise involves conduct that presents a serious potential risk of physical injury to another") is referred to as the "residual clause."

Given the stipulations in the Plea Agreement, the court sentenced Defendant on August 20, 2007 as an armed career criminal to 132 months imprisonment.3 Defendant did not appeal the August 27, 2007 Judgment, and it became final for purposes of 28 U.S.C. § 2255(f)(1) when the appeal period expired.4 See, e.g., United States v. Schwartz, 274 F.3d 1220, 1223 (9th Cir. 2001) (holding that a judgment becomes final and the limitations period under § 2255(f)(1) begins to run "upon the expiration of the time during which [he or] she could have sought review by direct appeal").

Under existing law at the time that Defendant was sentenced in August 2007, Defendant's prior burglary convictions under Hawaii Revised Statutes ("HRS") § 708-810 could have been considered to be § 924(e)(2) "violent felonies" under either (or both) the enumerated offense clause or the residual clause when applying the categorical/modified categorical approach derived from Taylor v. United States, 495 U.S. 575 (1990), and Shepard v. United States, 544 U.S. 13 (2005). See, e.g., United States v. Grisel, 488 F.3d 844, 851-52 & n.8 (9th Cir. 2007) (en banc) (remanding for application of modified categorical approach after determining that Oregon burglary statute was not a categorical generic burglary, and noting that the residual clause might otherwise apply) (decided June 5, 2007, shortly before Defendant's sentencing).

After Defendant's sentence became final, the Supreme Court issued the two opinions central to Defendant's § 2255 Motion. On June 20, 2013, the Supreme Court decided Descamps, "which more clearly than earlier cases limited the extent to which courts may satisfy the modified categorical approach by looking at the `facts' of prior convictions." United States v. Marcia-Acosta, 780 F.3d 1244, 1254 (9th Cir. 2015). Descamps "clarified that the modified categorical approach serves a `limited function,' `effectuating the categorical analysis when a divisible statute, listing potential offense elements in the alternative, renders opaque which element played a part in the defendant's [prior] conviction.'" Marcia-Acosta, 780 F.3d at 1249 (quoting Descamps, 133 S. Ct. at 2283)). "Divisibility" is a key question "because a conviction under an indivisible, overbroad statute can never serve as a predicate [ACCA] offense." Medina-Lara v. Holder, 771 F.3d 1106, 1112 (9th Cir. 2014) (citing Descamps, 133 S. Ct. at 2286). Among other matters, Descamps "resolve[d] a Circuit split on whether the modified categorical approach applies to statutes . . . that contain a single, `indivisible' set of elements sweeping more broadly than the corresponding generic offense . . . hold[ing] that it does not." 133 S. Ct. at 2283 (footnote omitted).5

And on June 26, 2015, the Supreme Court decided Johnson, which invalidated the ACCA's residual clause as unconstitutionally vague. 135 S. Ct. at 2557-58. Johnson reasoned that because the residual clause "both denies fair notice to defendants and invites arbitrary enforcement by judges," id. at 2557, "imposing an increased sentence under the residual cause . . . violates the Constitution's guarantee of due process." Id. at 2563.

Given Johnson, Defendant filed his § 2255 Motion on February 4, 2016, seeking re-sentencing, arguing that his original sentence was based on an improper determination that he is an armed career criminal under the ACCA.6 Specifically, Defendant contends that, absent the residual clause, his first-degree burglary convictions under HRS § 708-810 do not qualify as predicate violent felonies under the ACCA. See Doc. No. 82, Def.'s Mem. at 12. Defendant seeks to apply the modified categorical approach as explained in Descamps and subsequent Ninth Circuit caselaw (e.g., Rendon and Almanza-Arenas).

On February 11, 2016, Defendant filed his Motion for Release on Bail, Doc. No. 81, along with a Memorandum in Support of his § 2255 Petition and of his Motion for Release on Bail. Doc. No. 82. Defendant filed Supplemental Memoranda on February 23, 2016 and March 4, 2016. Doc. Nos. 86, 88. The government filed an Opposition on March 16, 2016, Doc. No. 90, and Defendant filed a Reply on March 22, 2016. Doc. No. 91. The government filed a Supplemental Memorandum on April 6, 2016. Doc. No. 93. Defendant also filed two Notices of Uncited Authority under Local Rule 7.8. Doc. Nos. 94, 95.

III. DISCUSSION

A. The Court's Power to Grant Bail Pending a Decision in a § 2255 Proceeding is Extremely Limited

"[T]here is abundant authority that federal district judges in habeas corpus and section 2255 proceedings have inherent power to admit applicants to bail pending the decision of their cases[.]" United States v. Lee, 2016 WL 1039046, at *2 (D. Haw. Mar. 15, 2016) (quoting Cherek v. United States, 767 F.2d 335, 337 (7th Cir. 1985) (citing cases from the Second, Fifth, Sixth, and Tenth Circuits)) (other citations omitted). That is, "[i]n a § 2255 proceeding, `the court's jurisdiction to order release as a final disposition of the action includes an inherent power to grant relief pendente lite, to grant bail or release, pending determination of the merits.'" United States v. Kelly, 790 F.2d 130, 139 (D.C. Cir. 1986) (quoting Baker v. Sard, 420 F.2d 1342, 1343 (D.C. Cir. 1969)).

The power to grant bail pending review, however, "is a limited one, to be exercised in special cases only." Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001). The power is to be exercised "only in unusual cases, or when extraordinary or exceptional circumstances exist." Id. (quoting Ostrer v. United States, 584 F.2d 594, 596 n.1 (2d Cir. 1978). It is "a power to be exercised very sparingly." Cherek, 767 F.2d at 337.

In making such a bail determination, courts consider two primary factors—exceptional/extraordinary circumstances and a high probability of success on the merits.7 See, e.g., United States v. Mett, 41 F.3d 1281, 1282 (9th Cir. 1994) (citing Land v. Deeds, 878 F.2d 318, 318-19 (9th Cir. 1989)); see also Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992) (reasoning that "bail pending post-conviction habeas corpus review [is] available `only when the petitioner has raised substantial constitutional claims upon which he has a high probability of success, and also when extraordinary or exceptional circumstances exist which make the grant of bail necessary to make the habeas remedy effective") (quoting Calley v. Callaway, 496 F.2d 701, 702 (5th Cir. 1974)).

Moreover, a petitioner should satisfy both factors before being entitled to bail. See Lee, 2016 WL 1039046, at *3 ("[R]equiring both prongs appears to be obvious . . . [because] it makes no sense that exceptional circumstances alone would be sufficient if the petitioner was unlikely to succeed on the merits.") (internal quotation marks and citation omitted); United States v. Costa, 2016 WL 1555676, at *4 (D. Haw. Apr. 15, 2016) ("Both a high probability of success on the merits of the habeas motion, and exceptional or extraordinary circumstances, should be present to warrant release on bail.").

B. Defendant is Not Entitled to Bail Pending a Decision on his § 2255 Motion

Defendant has not met his burden to justify release on bail while the court fully considers his § 2255 Motion. Although Johnson generally applies retroactively, see Welch, 136 S. Ct. at 1265, Defendant has not met his burden of demonstrating a high likelihood of success under the particular facts and circumstances of this case.

1. Johnson Likely Does Not Apply to Defendant's ACCA Sentence

In striking the ACCA's residual clause, Johnson made clear that its decision did "not call into question application of the [ACCA] to the four enumerated offenses, or the remainder of the [ACCA's] definition of a violent felony." 133 S. Ct. at 2563. And so, if a sentencing court did not rely on the residual clause—i.e., if it relied specifically on qualifying prior crimes under the use-of-physical force or enumerated-offense clauses (or on prior serious drug offenses)—then a defendant's sentence is unaffected by Johnson. See, e.g., Welch, 136 S. Ct. at 1268 ("It may well be that the Court of Appeals on remand will determine on other grounds that the District Court was correct to deny Welch's motion to amend his sentence. For instance, the parties continue to dispute whether Welch's strong-arm robbery conviction qualifies as a violent felony under the elements clause of the Act, which would make Welch eligible for a 15-year sentence regardless of Johnson."); United States v. Sykes, 809 F.3d 435, 439 (8th Cir. 2016) ("[B]ecause burglary is an enumerated offense under § 924(e)(ii), the imposition of an increased sentence need not rest on [the residual clause]."); Dawkins v. United States, 809 F.3d 953, 954 (7th Cir. 2016) ("Dawkins cannot show that his sentence violates Johnson . . . [f]or the sentence was based not on the residual clause but on prior convictions for carjacking, an element of which is the use or threatened use of force."); Belk v. United States, ___ F. App'x ___, 2016 WL 1587223, at *1 (2d Cir. Apr. 19, 2016) (denying leave to file successive § 2255 motion, reasoning in part that "[t]here is no evidence that Petitioner's sentence was enhanced under the provision of the ACCA that was found unconstitutional in Johnson. In any event, at the time of his sentencing, it was clearly established in this Circuit that Petitioner's robbery convictions qualified as ACCA predicates under § 924(e)(2)(B)(i), which was not invalidated by Johnson.").

Here, Defendant stipulated that he was an armed career criminal for purposes of the ACCA, and even more specifically, he agreed that his prior Hawaii burglary convictions all involved residences8—an agreement that only makes sense if the parties understood that Defendant had committed three or more violent felonies under the enumerated offenses clause.9 See, e.g., United States v. Bonat, 106 F.3d 1472, 1477 (9th Cir. 1997) ("The Oklahoma Information only charged Bonat with burglarizing a residence, along with the other elements of generic burglary; Bonat was not charged with entering an automobile, or any other object besides the residence. Therefore when Bonat pled guilty to the crime charged in the Information, he necessarily pled guilty to generic burglary."); Davidson v. McClintock, 2015 WL 1469775, at *4 (D. Ariz. Mar. 31, 2015) ("Petitioner's acknowledgment that he unlawfully entered a residence with intent to commit a crime is dispositive. Petitioner necessarily admitted the elements of generic burglary[.]") (citing Bonat, 106 F.3d at 1477).

And Defendant is bound by his stipulation that his prior burglaries involved residences, a stipulation that must have meaning in this context. See, e.g., United States v. Miranda, 484 F. App'x 70, 71 (7th Cir. 2012) ("Miranda waived this potential argument [that a prior conviction was not a predicate `crime of violence'] by stipulating to his career-offender status in the plea agreement.") (citing United States v. Fiore, 178 F.3d 917, 925 (7th Cir. 1999) ("Bombacino waived any obstruction of justice argument when he knowingly entered into a plea agreement with the government in which he stipulated that he obstructed justice by instructing witnesses to lie to federal agents.")); United States v. Dickerson, 457 F. App'x 232, 233 (4th Cir. 2011) (rejecting argument that defendant was improperly sentenced as an armed career criminal under 18 U.S.C. § 924(e) because defendant "stipulated he was an armed career criminal and is bound by his stipulation") (citing United States v. Martinez, 122 F.3d 421, 423 (7th Cir. 1997)).10

2. Descamps is Not Applicable, and 28 U.S.C. § 2255(f) Likely Bars Defendant's § 2255 Motion

Given that Johnson's invalidation of the residual clause does not apply where, as here, a sentence is enhanced based on a different clause (such as an enumerated felony), it is apparent that Defendant's § 2255 Motion is actually 1229080, at *6 (E.D. Wash. Mar. 28, 2016) ("However, Mr. Christian is thereby truly seeking relief from the Court's ACCA determination under Descamps, not Johnson."). That is, Defendant argues that his prior Hawaii burglaries are—despite his stipulation that he is an armed career criminal and that his prior burglaries involved residences—not qualifying prior violent felonies because, applying Descamps, Hawaii's burglary statute is indivisible and/or that this court improperly applied the modified categorical approach.

Attempting to apply Descamps here, Defendant originally argued that Descamps is a substantive rule for purposes of retroactivity (or, along with Johnson, it has a substantive effect). See Doc. No. 88, Def.'s Mar. 8, 2016 Mem. at 6-10. But courts have ruled—in various § 2255 gate-keeping contexts involving successive and/or time-barred petitions—that Descamps did not announce a new substantive rule of constitutional law made retroactive to cases on collateral review.11 See, e.g., United States v. Berkley, 623 F. App'x 346 (9th Cir. 2015) (upholding denial of § 2255 motion, reasoning that Descamps was not made "retroactively applicable to cases on collateral review") (citing Ezell v. United States, 778 F.3d 762, 766 (9th Cir. 2015)); Headbird v. United States, 813 F.3d 1092, 1097 (8th Cir. 2016).

Nevertheless, in a Notice of Uncited Authority, counsel for Defendant subsequently cited to Mays v. United States, 817 F.3d 728, 733 (11th Cir. 2016) (decided on March 29, 2016, holding that Descamps is an "old rule" that is not subject to a retroactivity bar under Teague v. Lane, 489 U.S. 288 (1989), in an initial § 2255 petition). See Doc. No. 94. By citing Mays, counsel has apparently changed his argument. See generally Whorton v. Bockting, 549 U.S. 406, 416 (2007) ("[A]n old rule applies both on direct and collateral review, but a new rule is generally applicable only to cases that are still on direct review."). Indeed, counsel has recently made such arguments in other § 2255 cases before this court that involve Johnson and Descamps. See, e.g., Doc. No. 84 (United States v. Leach, Cr. No. 05-00531 JMS).

But even if Descamps is an "old rule" that can apply on collateral review in an initial § 2255 petition, applying it here appears to be barred by the one-year limitation period in 28 U.S.C. § 2255(f). Defendant's conviction became final in September 2007, and he did not file this petition until February 2016. In this regard, Mays is inapplicable because in that case the government "conceded that, in light of Johnson, it believes Mays's sentence under § 924(e)(1) is unlawful," "waiv[ed] non-retroactivity as a defense to Mays's Descamps and Johnson arguments," and twice specifically waived a "period of limitations defense to Mays's challenge to his sentence." 817 F.3d at 732.

Perhaps recognizing that his claim could be time-barred, Defendant appears to have raised the "savings clause" in § 2255(e), and thus may be seeking to claim entitlement to relief under 28 U.S.C. § 2241.12 See Doc. No. 95, Letter of Uncited Authority (citing Summers v. Feather, 119 F.Supp.3d 1284 (D. Or. 2015)). And his counsel has argued (here and in other similar cases) that he is "actually innocent" of being an armed career criminal. The Ninth Circuit has rejected a similar argument under the career offender Sentencing Guideline's provision, see Marrero v. Ives, 682 F.3d 1190, 1193 (9th Cir. 2012) ("Petitioner's claim that two of his prior offenses should no longer be considered `related,' and that he was therefore incorrectly treated as a career offender . . . is not a cognizable claim of `actual innocence' . . . to bring a § 2241 petition under the escape hatch."). It appears unlikely that Defendant could succeed on this argument under the ACCA. But this issue, although raised, has not been fully briefed in this case, and the government has likewise not had an opportunity to respond to it.

In sum, Defendant has not met his heavy burden to justify release on bail while the court considers the § 2255 Motion. Defendant's stipulation as to an enumerated offense under the ACCA likely renders Johnson of limited significance. And even applying Descamps, it is likely that the § 2255 Motion is time-barred, and it appears that an exception does not apply.

C. Supplemental Briefing Is Appropriate as to the § 2255 Motion

Nevertheless, the court also recognizes that the law in this area is unsettled and evolving, and that the parties have not fully addressed in this case whether an exception to the limitation period in § 2255(f) could apply to Defendant's § 2255 Motion. Accordingly, the court requests supplemental briefing as to that question. To be clear, the court will not consider further argument as to bail issues or as to the effect of Defendant's stipulations. Simultaneous submissions limited to fifteen pages are due by June 6, 2016.

IV. CONCLUSION

For the foregoing reasons, Defendant's Motion for Release on Bail is DENIED. The court, however, requests supplemental briefing as to whether an exception to 28 U.S.C. § 2255(f) could apply in this case.

IT IS SO ORDERED.