SUSAN OKI MOLLWAY, District Judge.
Defendant-Petitioner has filed a second-in-time 28 U.S.C. 2255 motion, raising a claim under Johnson v. United States, 135 S.Ct. 2551 (2015), which raises the question of whether his present 2255 motion is a "second or successive" one that cannot be filed unless the Ninth Circuit, pursuant to 2255(h), certifies it as containing a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
In his memorandum in support of this motion, the petitioner lays out the argument for why his present #2255 motion is not a second or successive one and does not, therefore, trigger the certification 2255(h) requires. If this Court disagrees, however, and rules the he is mistaken, he here urges this Court to refer this matter to the Ninth Circuit for it to provide the certification that #2255(h) requires. The Ninth Circuit's Circuit Rule 22-3(a) explicitly requires this Court to do so once it concludes that a petitioner has mistakenly filed a second or successive #2255 motion in this Court without the certification that 2255(h) requires. Cir. R. 22-3(a) ("[i]f a second or successive petition or motion . . . is mistakenly submitted to the district court, the district court shall refer it to the court of appeals".)
Time, moreover, is short for doing so. As the petitioner's 2255 motion indicates, his claim arises from the Supreme Court's June 26, 2015, decision in Johnson. The one-year limitations period for filing his present 2255 motion requires filing it on or before June 25, 2016. Thus, either a ruling from this Court that his present 2255 motion is not a second or successive one or, alternatively, section 2255(h) certification from the Ninth Circuit, needs to occur before then.
The petitioner therefore urges this Court to address this issue with the immediacy it requires.
For the reasons noted above and discussed in his memorandum in support of this motion, this Court should rule that the petitioner's present 2255 motion may proceed in this Court without 2255(h) certification, If, on the other hand, this Court rules that such certification is required, this Court should immediately refer this matter to the Ninth Circuit pursuant to Cir. R. 22-3(a).
DATED: Maui, Hawai'i, April 8, 2016
1. To use this form, you must be a person who is serving a sentence under a judgment against you in a federal court. You are asking for relief from the conviction or the sentence. This form is your motion for relief.
2. You must file the form in the United States district court that entered the judgment that you are challenging. If you want to challenge a federal judgment that imposed a sentence to be served in the future, you should file the motion in the federal court that entered that judgment.
3. Make sure the form is typed or neatly written.
4. You must tell the truth and sign the form. If you make a false statement of a material fact, you may be prosecuted for perjury.
5. Answer all the questions. You do not need to cite law. You may submit additional pages if necessary. If you do not fill out the form properly, you will be asked to submit additional or correct information. If you want to submit a brief or arguments, you must submit them in a separate memorandum.
6. If you cannot pay for the costs of this motion (such as costs for an attorney or transcripts), you may ask to proceed in forma pauperis (as a poor person). To do that, you must fill out the last page of this form. Also, you must submit a certificate signed by an officer at the institution where you are confined showing the amount of money that the institution is holding for you.
7. In this motion, you may challenge the judgment entered by only one court. If you want to challenge a judgment entered by a different judge or division (either in the same district or in a different district), you must file a separate motion.
8. When you have completed the form, send the original and two copies to the Clerk of the United States District Court at this address:
1. (a) Name and location of court that entered the judgment of conviction you are challenging:
2. (a) Date of the judgment of conviction (if you know): February 17, 2006
3. Length of sentence: 336 months
4. Nature of crime (all counts):
5. (a) What was your plea? (Check one)
6. If you went to trial, what kind of trial did you have? (Check one) Jury [✓] Judge only []
7. Did you testify at a pretrial hearing, trial, or post-trial hearing? Yes [] No [✓]
8. Did you appeal from the judgment of conviction? Yes [] No [✓]
9. If you did appeal, answer the following:
10. Other than the direct appeals listed above, have you previously filed any other motions, petitions, or applications concerning this judgment of conviction in any court?
11. If your answer to Question 10 was "Yes," give the following information:
12. For this motion, state every ground on which you claim that you are being held in violation of the Constitution, laws, or treaties of the United States. Attach additional pages if you have more than four grounds. State the
13. Is there any ground in this motion that you have not previously presented in some federal court? If so, which ground or grounds have not been presented, and state your reasons for not presenting them:
14. Do you have any motion, petition, or appeal
15. Give the name and address, if known, of each attorney who represented you in the following stages of the judgment you are challenging:
16. Were you sentenced on more than one count of an indictment, or on more than one indictment, in the same court and at the same time? Yes [] No [✓]
17. Do you have any future sentence to serve after you complete the sentence for the judgment that you are challenging? Yes [] No [✓]
18. TIMELINESS OF MOTION: If your judgment of conviction became final over one year ago, you must explain why the one-year statute of limitations as contained in 28 U.S.C. § 2255 does not bar your motion.
This memorandum supports defendant-petitioner Daniel Lynn Myers' 28 U.S.C. 2255 motion; and, (2) his motion seeking a ruling that his #2255 motion is not a second and successive one or, if this Court rules it is, in the alternative to refer this matter to the Ninth Circuit to certify his #2255 motion for filing in accord with 28 U.S.C. (h) and Cir.R 22-3(a) (9
1. The defendant's motion urges this Court to vacate his judgment and resentence him on Count1 I (the only count involved in his case) for his violation of 21 U.S.C. # 841(a)(1) and 846. The defendant's habeas claim is that his sentence violates due process, because this Court found him to be a career offender under USSG #4B 1.1 on the basis of a prior conviction (Voluntary Manslaughter) that, as a matter of law, is not a crime of violence under USSG 4B 1.2(a). The Court also relied on a prior controlled substance conviction.
The prior conviction at issue here is one for Voluntary Manslaughter, out of California (see paragraphs 40, 44 and 52 of Presentence Report).
However, in September of 2015, the Ninth Circuit in Walter Antonio Quijada-Aquilar v. Loretta E. Lynch, Attorney general, 799 F.3rd 1303 (9th Cir. 2015) specifically held that voluntary manslaughter is
The Ninth Circuit further noted that "If the state statute "criminalizes more conduct than the relevant federal generic definition it is not a categorical match. See United State v. Gonzalez-Monterroso, 745 F. 3
"We hold that CPC #192(a) is not categorically a crime of violence because it encompasses a broader range of criminal intent than the federal definition of a crime of violence in 18U.S. C. # 16. Specifically in order to constitute a crime of violence iunder 18 U.S.C. #16 "the underlying offense must require proof of an intentional use of force or a substantial risk that force will be intentionally used during its commission. United States v. Gomez-Leon, 545 F.3
"By contrast, the California Supreme Court has clarified that a person may be convicted of voluntary manslaughter under CPC # 192(a) for merely reckless conduct. People v. Lasko, 23 Cal.4
"Because a person may be convicted of voluntary manslaughter under California Penal Code # 192(a) for reckless conduct — conduct that falls outside the definition of a crime of violence set forth in 18 U.S.C. # 16 — we conclude that #192(a) is not categorically a crime of violence." Quijada-Aquilar at 1306, 1307.
Therefore, defendant /petitioner Myer's conviction for Voluntary Manslaughter no longer qualifies as a crime of violence for purposes of the Career Offender guidelines.
Moreover, Johnson held the residual clause was unconstitutionally vague, and Johnson applies retroactively. That means that, at the time the petitioner was sentenced, the residual clause could not have been used to authorize imposing a Career Offender enhancement on him under Count 1 basing it on a prior Voluntary Manslaughter conviction, and a controlled substance conviction.
The Career Offender's residual clause, like the ACCA's residual cause, is indistinguishable from U.S.S.G. # 4B 1.2's residual clause, and the Ninth Circuit has interpreted the two clauses interchangeably. As such, this Court should treat the two clauses identically under Johnson and find # 4B 1.2's residual clause unconstitutionally vague under Johnson's ruling. Because Myers was sentenced under U.S.S.G. 4B 1.2's residual clause he requires re-sentencing because his current sentence is unconstitutional.
Myers was sentenced to 336 months after being found guilty by Jury verdict of Count 1: Conspiracy to distribute and possess with intent to distribute 50 grams or more of methamphetamine under 21 U.S.C. 846.
According to the Presentence report, Myer's had 13 criminal history points, establishing a criminal history category of VI (paragraph 51 PSR), with a base offense level of 36. (PSR # 34).
The Court then followed the PSR Report recommendation in paragraph 40 and 52, to designate Myers as a Career Offender pursuant to U.S.S.G. #4B 1.1, raising his base offense level to 37. The Court and PSR relied on two prior felony convictions in imposing the Career Offender enhancement: a 11/17/87 conviction for Voluntary Manslaughter (previously a crime of violence under the residual clause); and, a 3/13/1996 conviction for Possession of Purchase of Controlled Substance for Sale-Methamphetamine. The range of his offense would have been 360 months to life, but the Court on April 19, 2007 amended the judgment and sentence to 336 months, essentially a one-point variance downward to offence category 36.
If the Career offender enhancement was not applied, Myers range would be 324-405 months, at an offense score of 36.
Today, as a result of Amendment 782 to the Guidelines (which this Court is familiar from all the "drugs minus two" petitions it has reviewed under 18 U.S.C. #3582 © (2)), the defendant's proper guideline calculations would be even lower, once his erroneous designation as a career offender is corrected. As a result of Amendment 782 and using today's drug guidelines, the defendant would qualify for the two-point reduction, so his offence level would drop to 34, dropping his range to 262-327 months. Moreover as the Court appears to have given a one point variance, his offender score would drop to 33 resulting in a range of 235-293 months.
The petitioner's present 2255 motion appears to implicate 28 U.S.C. 2255(h). Subsection (h) requires the Ninth Circuit to certify that a "second or successive petition" involves (as pertinent here) "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable". As yet, the Ninth Circuit has not certified the petitioner's present 2255 motion under 2255(h).
The petitioner has not sought 2255(h) certification because he believes that his present 2255 motion, is not a second and successive one that triggers 2255(h)'s requirement. He has filed a motion in this Court requesting a ruling on whether his belief in that regard is a mistaken one. If this Court rules he is mistaken and that his present 2255 motion is a second and successive one, he requests that this Court stay his motion, and refer this matter to the Ninth Circuit for it to provide the certification 2255(h) requires, as the Ninth Circuit's Circuit Rule 22-3 directs. Cir. R. 22-3(a) (9
The argument that the petitioner's second-in-time 2255 motion is not a second and successive one for purposes of 2255(h) rests simply on the proposition that the claim he now raises was not ripe until Johnson was decided (on June 26, 2015) and, thus, was not a claim that could or should have been brought before now. United States v. Buenrostro, 638 F.3d 720 (9
Here, the claim that the petitioner presents in his present 2255 motion is one that was not ripe until the Supreme Court decided Johnson as it did on June 26, 2015. His present claim, accordingly, was not one that he could have (much less should have) brought since being sentenced in 2006, and amended in 2007, some nine years before Johnson was decided. Because his present 2255 motion raises only a claim that was unripe at the time he was sentenced, his present 2255 motion is not a second or successive one under 2255(h). His present 2255 motion may, accordingly, proceed without 2255(h) certification.
3). The petitioner anticipates that the government, as it has in other similar cases currently pending before this Court, will suggest that the petitioner's claim fails because Descamps's is not retroactively applicable to him. The government's argument parrots the holdings in pre-Johnson, pre Montgomery cases-most notably, Ezell v. United States, 778 F.3d 762 (9
Helpful, is to recall the general points hit in Montgomery's recent retroactivity tutorial. Substantive rules have retroactive effect. Montogomery, 136 S. Ct. at 729. Procedural rules do not, generally (watershed procedural rules being the exception). Id. at 728. A rule that bars the government's power from inflicting a certain punishment, placing it beyond the government's power to impose, is a substantive rule. Id. at 729. A procedural rule, on the other hand, is one that alters the manner of determining (as relevant here) that punishment, in an effort to make the determination of the defendant's sentence more accurate. Id. at 730. A new procedural rule does not, accordingly, necessitate concluding that the punishment resulting from the application of the old procedural rule is unlawful, because punishment may well still be allowed by and be lawful under the new rule. Id. at 730. "The same possibility of a valid result does not exist where a substantive rule has eliminated the [government's] power . . . to impose a given punishment." Id. Where such is the case, the use of "impeccable" and "flawless sentencing procedures'' do not and could not "legitimate a punishment" that the substantive rule prohibits the government from imposing. Id. Which is why a substantive rule has, automatically, retroactive effect-because there is no way that rule doesn't change the outcome. Id.
Descamps prohibits use of modified categorical analysis entirely when the statue of prior conviction is indivisible and, as to divisible statutes, limits the use of modified categorical analysis to determining what crime the defendant committed (as opposed to what facts predicated his conviction for that crime), to see if that crime is a categorical match for what is generically required. United States v. Werle, ___ F.3d ___, 2016 WL 828132 at
Up until Johnson was decided, the effect of Descamps was entirely procedural, for all Descamps did was alter the way the government went about imposing an ACCA punishment. Cutting off use of modified categorical, analysis entirely as to indivisible statues and limiting its use on divisible statutes did not require the government to rely on, as it and courts routinely did up until Johnson, the residual clause to impose an ACCA punishment.
But Johnson held the residual clause is unconstitutionally vague, eliminating it from analysis. And Johnson applies retroactively. That means that, at the time petitioner was sentenced, the residual clause could not have been used to authorize imposing a Career Offender enhancement/designation on Count 1. Taking away the residual clause, which had authorized such punishment when the enumerated offenses or elements/force clauses did not, takes away — eliminates — the basis for concluding that Descamps is all about procedure, and all about how we get to a Career Offender derived sentence.
Defendant-Petitioner Myers asks this court to grant his 2255 motion, vacate his judgment of conviction and sentence, as Voluntary Manslaughter is not a "crime of violence" pursuant to Johnson and prodigy. He further respectfully asks Your Honor to find that this motion is not a second and successive one under #2255(h) or alternatively, to grant a stay and refer this Matter to the Ninth circuit for # 2255(h) Certification.
Therefore, Defendant-Petitioner Myers respectfully asks this Court to resentence him within the limits due process imposes in his case to the lower range.
Defendant-Petitioner has filed a second-in-time 28 U.S.C. 2255 motion, raising a claim under Johnson v. United States, 135 S.Ct. 2551 (2015), which raises the question of whether his present 2255 motion is a "second or successive" one that cannot be filed unless the Ninth Circuit, pursuant to 2255(h), certifies it as containing a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
In his memorandum in support of this motion, the petitioner lays out the argument for why his present #2255 motion is not a second or successive one and does not, therefore, trigger the certification 2255(h) requires. If this Court disagrees, however, and rules the he is mistaken, he here urges this Court to refer this matter to the Ninth Circuit for it to provide the certification that #2255(h) requires. The Ninth Circuit's Circuit Rule 22-3(a) explicitly requires this Court to do so once it concludes that a petitioner has mistakenly filed a second or successive #2255 motion in this Court without the certification that 2255(h) requires. Cir. R. 22-3(a) ("[i]f a second or successive petition or motion . . . is mistakenly submitted to the district court, the district court shall refer it to the court of appeals".)
Time, moreover, is short for doing so. As the petitioner's 2255 motion indicates, his claim arises from the Supreme Court's June 26, 2015, decision in Johnson. The one-year limitations period for filing his present 2255 motion requires filing it on or before June 25, 2016. Thus, either a ruling from this Court that his present 2255 motion is not a second or successive one or, alternatively, section 2255(h) certification from the Ninth Circuit, needs to occur before then.
The petitioner therefore urges this Court to address this issue with the immediacy it requires.
For the reasons noted above and discussed in his memorandum in support of this motion, this Court should rule that the petitioner's present 2255 motion may proceed in this Court without 2255(h) certification, If, on the other hand, this Court rules that such certification is required, this Court should immediately refer this matter to the Ninth Circuit pursuant to Cir. R. 22-3(a).
DATED: Maui, Hawai'i, April 8, 2016
Relying on
In
The court directs the Clerk of Court to transmit this order with its attached Exhibit A to the Ninth Circuit. All pending deadlines are vacated, and the Clerk of Court is further directed to terminate any motion left pending before this court and to close both Criminal No. 04-00363 SOM (04) and Civil No. 16-00164 SOM-KSC.
IT IS SO ORDERED.
