JUSTIN L. QUACKENBUSH, Senior District Judge.
BEFORE THE COURT is Defendant Danial Dublin's pro se Motion to Vacate (ECF No. 83). On May 4, 2018, the court appointed the Federal Defenders of Eastern Washington and Idaho to represent Defendant. (ECF No. 87). On May 16, 2018, the Government filed a Response to the Motion to Vacate. (ECF No. 89). On June 7, 2018, the Federal Defenders filed a Reply. (ECF No. 90). Oral argument was not requested and the matter was submitted without argument.
On February 21, 2013, Defendant was charged with being a Felon in Possession of Firearm and Ammunition. (ECF No. 1). On April 24, 2013, a Superseding Indictment was returned charging Defendant with two counts of Felon in Possession of Firearm and Ammunition. (ECF No. 37). On May 17, 2013, Defendant pled guilty to being a Felon in Possession of Firearms and Ammunition pursuant to a Fed.R.Crim.P. 11(c)(1)(C) Plea Agreement. (ECF No. 60). On July 16, 2013, Defendant was sentenced to 188 months imprisonment pursuant to the Plea Agreement. (ECF No. 71). At the time of sentencing, Defendant had four prior convictions in the State of Washington for Second Degree Assault with a Deadly Weapon— two counts in a 1999 case (cause number 99-1-02538-6) and two counts in a 2001 case (cause number 01-1-02837-6). (ECF No. 89-1); (ECF No. 89-2).
The Plea Agreement provided in part: "the Parties believe that the Defendant qualifies for sentencing under 18 U.S.C. § 924(e)(1) as an Armed Career Criminal." (ECF No. 60 at ¶ 1). The Government and Defendant also agreed in the Plea Agreement "to recommend that the court impose a sentence of one hundred eighty-eight (188) months." (ECF No. 60 at ¶ 10). Defendant agreed to waive his right to appeal his conviction and sentence "if the Court imposes a period of incarceration of no longer than one hundred eighty-eight (188) months, imposes a term of supervised release of no longer than five (5) years, and imposes an [sic] special penalty assessment of $100." (ECF No. 60 at ¶ 17). Additionally, the Plea Agreement stated Defendant "expressly waives his right to file any post-conviction motions attacking his conviction and sentence, including a motion pursuant to 28 U.S.C. § 2255, except one based upon ineffective assistance of counsel based upon information not now known by the Defendant, and which, in the exercise of due diligence, could not be known by the Defendant by the time the Court imposes the sentence." (ECF No. 60 at ¶ 17).
Defendant was sentenced on July 16, 2013 to the agreed term stated in the Plea Agreement, 188-months. By accepting the Plea Agreement and adopting the Presentence Investigation Report, the court implicitly found Defendant was an Armed Career Criminal subject to a minimum sentence of 15 years up to life imprisonment.
On February 9, 2016, the court granted the Federal Defenders' ex parte Motion for Appointment to investigate whether to file a motion pursuant to 28 U.S.C. § 2255 and Johnson v. U.S., 135 S.Ct. 2251 (2015). (ECF No. 75). On April 1, 2016, appointed counsel, Alison Guernsey, filed an ex parte Motion for Withdrawal. (ECF No. 77). The Motion stated Ms. Guernsey had decided not to file anything, and further stated: "Mr. Dublin is aware that if he intends to proceed with a pro se Johnson petition the statutory filing deadline is June 26, 2016." (Id. at 2). On May 2, 2016, the court granted the Federal Defenders' Motion for Withdrawal based on the decision not to file a motion on Defendant's behalf based on Johnson. (ECF No. 80).
On August 31, 2017, Defendant signed and submitted a pro se petition in the Ninth Circuit for leave to file a successive 2255 Motion. (ECF No. 83). Defendant also submitted a copy of his proposed Motion. (ECF No. 83). On April 12, 2018, the Ninth Circuit issued an Order denying the petition as unnecessary since it was Defendant's first 2255 Motion. (ECF No. 82 at 1). The Ninth Circuit transferred the Motion to this court and deemed the Motion filed as of August 31, 2017. (ECF No. 82 at 1-2). The Federal Defenders requested to be appointed as counsel, and the court granted the motion on May 4, 2018. (ECF No. 87). Response and Reply briefs were filed. (ECF No. 89 & 90).
The Defendant's Motion to Vacate alleges "Johnson has invalidated Washington's Second Degree Assault as a violent felony, thus making my 188 month sentence in excess of 922(g)'s statutory maximum unconstitutional." (ECF No. 83 at 5). The Motion argues: (1) the Washington Second Degree Assault statute is overbroad and indivisible and cannot be used as a predicate offense under the ACCA; (2) the binding nature of his Plea Agreement does not bar his constitutional claim; (3) enforcing the appellate waiver in his Plea Agreement would result in a miscarriage of justice; and (4) Defendant has acted diligently in pursuing his claim and the Government should waive all procedural arguments.
Defendant brings his Motion pursuant to 28 U.S.C. § 2255(a). This statute, by its plain terms, sets forth four available grounds for relief, as stated by the Supreme Court:
Hill v. United States, 368 U.S. 424, 426-7 (1962). The Supreme Court in Hill stated that Congress enacted § 2255 to provide "a remedy exactly commensurate with that which had previously been available by habeas corpus." Id. at 427. The Ninth Circuit Court of Appeals has stated: "Because a § 2255 motion is commensurate with habeas relief, it may only be used to collaterally attack a conviction and sentence upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States." United States v. Berry, 624 F.3d 1031, 1038 (9th Cir. 2010).
A motion pursuant to § 2255 must generally be filed within one-year of "the date on which the judgment of conviction becomes final". 28 U.S.C. § 2255(f)(1). Defendant's Judgment was entered on July 16, 2013, and became final shortly thereafter when no direct appeal was filed. The instant Motion was not filed until August 2017, and is therefore untimely under the one-year period of limitations, unless some exception applies. Defendant invokes subsection (f)(3) which allows a defendant to bring a motion within one-year from: "(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." Defendant also argues for equitable tolling. Under subsection (f)(3) the one-year period runs from the date on which the right was "initially recognized" even if it has not yet been made retroactive.
The instant Motion, filed on August 31, 2017, was filed more than two years after Johnson, and more than one year after Welch. However, when the Federal Defenders asked to be appointed in February 2016, to investigate a potential Johnson motion, a § 2255 motion could have been timely filed. In fact, the Federal Defenders moved to withdraw on April 1, 2016, which was before the Supreme Court declared Johnson retroactive in its Welch decision on April 18, 2016. On or about April 1, 2016, the Federal Defenders erroneously advised Defendant his Johnson-based challenge was unlikely to be successful and advised him not to pursue it because it could disrupt his Plea Agreement and expose him to a higher sentence. (
Defense counsel's letter expressed an arguable interpretation of the law and analysis of the likelihood of success on a § 2255 motion. Counsel believed, based on United States v. Jennen, 596 F.3d 594 (9th Cir. 2010), Dublin could not prevail. However, others at that time were challenging the Jennen rationale, and ultimately prevailed in Robinson, 869 F.3d 933 (9th Cir. 2017) and Slade, 873 F.3d 712 (9th Cir. 2017). In the instant Reply brief, counsel states the "Federal Defender's Office was actually aware of developments in case law supporting challenges to second-degree assault convictions as violent felonies and crimes of violence" at least as early as March 4, 2016. (ECF No. 90, p. 9-10). Counsel contends the advice provided to Dublin in the April 1, 2016 letter was therefore questionable and Dublin relied thereon to his detriment in failing to file a § 2255 petition. (Id. at p. 10).
The § 2255 Petition filed on August 31, 2017, is clearly untimely, as it needed to be filed within one year of the Johnson decision, issued on June 26, 2015. The issue presented is equitable tolling. Generally, to invoke equitable tolling, a petitioner must show he has been pursuing his rights diligently and some extraordinary circumstance stood in his way. United States v. Gilbert, 807 F.3d 1197 (9th Cir. 2015). Mistaken advice by counsel may not qualify as an extraordinary circumstance. In Gilbert the court stated: "Assuming that Gilbert's counsel did give erroneous advice on the filing deadline, this is not the kind of extraordinary circumstance that compels equitable tolling." Id. at 1202. The Seventh Circuit has similarly concluded a mere mistake by defense counsel in calculating a deadline was not extraordinary or beyond the defendant's control. Lombardo v. United States, 860 F.3d 547 (7th Cir. 2017). However, Judge Posner, in dissent, stated defense counsel's reliance on a paralegal to calculate the deadline could rise to the sort of egregious or unprofessional conduct necessary to meet the extraordinary circumstances test.Id. at 562.
Courts have also been more likely to recognize equitable tolling when a mistake of law by the court, or misinformation by the court's staff, have contributed to the untimely filing. In United States v. Buckles, 647 F.3d 883 (9th Cir. 2013), the Ninth Circuit recognized that if petitioner could establish the clerk's office provided his sister with incorrect information, upon which he relied, he may be able to substantiate his claim for equitable tolling. More recently, a District Court recognized equitable tolling in the somewhat similar context of a § 2255 motion raising a Johnson claim. United States v. Wilson, 249 F.Supp.3d 305 (D.D.C. 2017). In Wilson, the court had appointed the Federal Defenders to investigate potential Johnson claims, and set up a protocol where counsel had until Monday, June 27, 2016, to protectively file an abridged motion, and was then allowed four months to supplement the motion. Appointed counsel filed the motion one-day late. The court stated: "Once the Supreme Court decided Welch in March 2016, opening the door for collateral attacks based on Johnson 2015, very little time remained for a defendant to file a § 2255 motion. Many defendants who were potentially eligible for relief, including Wilson, were represented at trial by appointed counsel, sentenced many years ago, and no longer had counsel actively representing them." Id. at 314. The court then acknowledged appointed counsel filed the motion one day late, but stated: "If that one-day delay precludes defendant from seeking relief and his ACCA sentence is unlawful, he will serve a sentence that is, at a minimum, five years longer than it should be. The doctrine of equitable tolling exists to prevent such unjust outcomes." Id.
Dublin is somewhat analogous to Wilson in that he had been sentenced in the years prior to Johnson being issued, and was no longer being actively represented by counsel when Johnson was handed down in June 2015. Both Wilson and Dublin had counsel appointed to represent them in filing a potential Johnson motion. Wilson's counsel filed a motion one-day late, and Dublin's counsel did not file a motion at all. Instead, Dublin's counsel withdrew after advising him that he faced a greater sentencing exposure if he pursued a pro se motion. Dublin candidly admitted he was advised he could file a pro se motion, but that he relied on the advice of counsel not to do so, because of the risk of "blowing up" his plea deal. (ECF No. 83, p. 16 of 38). Thus, this is not a situation where counsel merely advised of an incorrect date, but rather counsel's advice actively dissuaded Dublin from pursuing his legal rights.
Defendant contends he diligently pursued his rights. First he contends he "took prompt action in contacting his attorney" to inquire if he had a Johnson claim. (Id. at 15). After appointed counsel erroneously advised him he did not have a claim, he continued to monitor case developments, and became aware of the issuance of United States v. Harrison, 691 Fed.Appx. 440 (9th Cir. May 24, 2017). In Harrison, an unpublished opinion, the Ninth Circuit found Washington's Second Degree Assault statute was overbroad and indivisible and a conviction under that statute does not qualify as a violent felony under the ACCA. The analysis was later confirmed by two published opinions of the Ninth Circuit: United States v. Robinson, 869 F.3d 933 (9
The court finds Defendant diligently pursued his rights, and was actively dissuaded from filing a timely motion by the erroneous advice of appointed counsel. Accordingly, equitable tolling is appropriate and the court finds the Motion is not time-barred.
"A waiver of appellate rights `is enforceable if (1) the language of the waiver encompasses his right to appeal on the grounds raised, and (2) the waiver is knowingly and voluntarily made." U.S. v. Medina-Carrasco, 815 F.3d 457, 461 (9
The parties do not dispute the waiver contained in the Plea Agreement was knowingly and voluntarily made. The issue is whether the waiver should be enforced. The Government argues the appellate waiver is enforceable because "Defendant was sentenced to a term of imprisonment below the statutory maximum" and his sentence does not violate the constitution. (ECF No. 89 at 14).
The statutory maximum penalty for being a Felon in Possession is 10 years imprisonment. See 18 U.S.C. § 924(a)(2). However, if the defendant is found to be an Armed Career Criminal, the statutory
The Plea Agreement provides, at Paragraph 17, the following: Defendant "expressly waives his right to file any post-conviction motions attacking his conviction and sentence, including a motion pursuant to 28 U.S.C. § 2255, except one based upon ineffective assistance of counsel based upon information not now known by the Defendant, and which, in the exercise of due diligence, could not be known by the Defendant by the time the Court imposes the sentence." (ECF No. 60 at ¶ 17). A defendant may waive the statutory right to file a § 2255 petition challenging his sentence, if he does so expressly, and knowingly and voluntarily enters into the plea agreement. United States v. Reves, 774 F.3d 562, 566 (9
It may be the intent of the Plea Agreement was to waive any Section 2255 motion except one based on ineffective assistance and based on
A motion under 28 U.S.C. § 2255 may be denied as procedurally defaulted if the claim presented in the motion was not raised on direct appeal. Massaro v. U.S., 538 U.S. 500, 504 (2003). However, a defendant may overcome procedural default by showing "cause and prejudice." (Id.). A similar question was presented in Agtuca v. United States, 2018 WL 2193134 (W.D. Wa. May 14, 2018), where Agtuca brought a 2255 motion based on Johnson and challenged a prior Washington Second-Degree Assault conviction. Agtuca had not raised the claim on direct appeal, and the Government did not contest prejudice, but asserted Agtuca could not show cause. The court found Agtuca had established cause because Johnson "explicitly overruled previous Supreme Court precedent, and the basis for making the claim was not reasonably available at the time of Mr. Agtuca's previous proceeding." Id. at *2.
Other courts have reached the same conclusion. "A defendant can show cause where a claim is so novel that its legal basis was not reasonably available to counsel. That is certainly the case here where, as the D.C. Circuit recently noted, no one could reasonably have anticipated Johnson." United States v. Wilson, 249 F.3d 305, 315 (D.D.C. 2017)(internal quotations and citations omitted). Prior to Johnson, the Supreme Court had rejected challenges to the ACCA's residual clause. Defendant has established cause. To establish prejudice, a defendant must show at least a reasonable probability that, but for the errors, the result of the proceeding would have been different. Id. at 315. Prejudice is obvious. The ACCA subjected Defendant to a 15-year mandatory
Defendant asserts his claim relies on Johnson, which is indisputably a new rule of constitutional law that has been made retroactively applicable to cases on collateral review. Welch v. U.S., 136 S.Ct. 1257 (2016). The Government argues his claim is based on Descamps and Mathis. (ECF No. 89, p. 2). A claim based on Descamps v. U.S., 570 U.S. 254 (2013), does not present a constitutional claim, and Descamps is not retroactively applicable to cases on collateral review.
In U.S. v. Geozos, 870 F.3d 890, 894 (9
In determining whether a claim relies on Johnson, the court may consider "both the record before the sentencing court and the relevant background legal environment at the time of sentencing." U.S. v. Geozos, 870 F.3d 890, 896 (9
In Geozos, the sentencing court found the defendant was an Armed Career Criminal, but did not specify which prior convictions served as predicates or which part(s) of the "violent felonies" or "serious drug offenses" definition it relied upon. (870 F.3d at 893). The defendant in Geozos had six convictions that could have qualified as predicates: (1) third degree assault in Alaska; (2) possession of cocaine in Florida; (3) burglary in Florida; (4) armed robbery in Florida; (5) robbery and using a firearm in the commission of a felony in Florida; and (6) armed robbery in Florida. (Id.). The Ninth Circuit determined the sentencing court's Armed Career Criminal determination may have relied on the residual clause because "[a]t the time Defendant was sentenced in 2007, neither this court nor the Supreme Court had held that either Florida robbery or armed robbery qualified as a `violent felony.'" (Id. at 897). Further, the court stated: "We had held (or suggested in dicta) that other states' robbery statutes described `violent felonies' under the force clause,
In 2013, at the time this court sentenced Defendant, there were Ninth Circuit cases finding Washington Second Degree Assault qualified as a violent felony under
The ultimate merits issue-are Dublin's prior convictions for Washington Second Degree Assault qualifying predicate offenses under the ACCA— is fairly simply resolved by recent Ninth Circuit precedent. First in Harrison, 691 Fed.Appx. 440 (9
In United States v. Robinson, 869 F.3d 933, 934 (9
In United States v. Slade, 873 F.3d 712 (9
All of Dublin's qualifying predicate convictions at sentencing were for Washington Second Degree Assault. The Ninth Circuit has repeatedly and definitively stated RCW 9A.36.021 is overbroad and indivisible and a conviction thereunder no longer qualifies as a "violent felony" under the ACCA or "crime of violence" under the Guidelines. Dublin had four prior convictions for violation of 9A.36.021. Defendant's state court judgments specifically state Defendant was convicted of Second Degree Assault in violation of "[RCW] 9A.36.021(1)(c)" in both counts I and II. See (ECF No. 89-1 at 4); (ECF No. 89-2 at 8-9). The subsection cited is Second Degree Assault with a Deadly Weapon. RCW 9A.36.021(1)(c). Additionally, the two convictions in the 2001 case were the result of a bench trial wherein the trial court found Defendant used a firearm when he committed Second Degree Assault with a Deadly Weapon. (ECF No. 89-2 at 9).
Dublin's conviction under subsection (1)(c) is the specific subsection found not to qualify as a crime of violence in Slade, despite the underlying state court documents reflecting Slade had shot a man. The Supreme Court has advised the underlying facts do not matter for purposes of the categorical approach.
The Supreme Court has developed a two-pronged approach to determining whether convictions are "crimes of violence." Mathis v. U.S., 136 S.Ct. 2243, 2248-49 (2016). Under the "categorical" approach, the court must "focus solely on whether the elements of the crime of conviction sufficiently match the elements" of the federal generic equivalent. (Id. at 2248); see also, (id.) (Explaining the elements are "what the jury must find beyond a reasonable doubt to convict the defendant"). Only if the statute is divisible, that is, the statute lists "elements in the alternative, and thereby defines multiple crimes", may the court engage in the "modified" categorical approach and look at specific documents to determine if the defendant committed a crime falling within the federal definition of violent felonies. (Id. at 2249). The Ninth Circuit has held the Washington Second Degree Assault statute, RCW 9A.36.021, is categorically overbroad and indivisible because it sets forth alternative means of committing the crime, and jury unanimity is not required on the means used to commit the offense.
If sentenced today, it is entirely clear, based on recent precedent, Dublin would not qualify for sentencing enhancement under the ACCA. Thus, he would face a maximum sentence of ten years, rather than a mandatory minimum sentence of fifteen years. However, Defendant was sentenced in 2013, at a time when the state of the law was different, and Defendant faced several procedural hurdles to advancing the instant claim. Most significant was the 1-year statute of limitations under § 2255(f). This court concludes that equitable tolling is appropriate, given Dublin could have filed a timely Johnson motion in March/April 2016 when he was represented by appointed counsel. However, counsel did not file a motion and actively dissuaded Dublin from filing a pro se motion. Despite this action by counsel, Dublin continued to monitor case law developments and filed his own pro se motion.
Defendant's four prior convictions for Washington second-degree assault no longer qualify as violent felonies under the ACCA, 18 U.S.C. § 924(e), and accordingly Defendant's Motion is granted and the matter will be set for resentencing.
The resentencing schedule shall be set after counsel for the Defendant has conferred with Mr. Dublin and advised the court on the following issues:
1. Does the Defendant wish to be transported back to Spokane, Washington for an appearance in person at resentencing;
2. Does the Defendant wish to waive a personal appearance at resentencing and telephonically appear at his present BOP location for resentencing.
1. The Motion to Vacate (ECF No. 83) is
2. Resentencing in this matter shall be set by the court for a future date after the personal appearance matter is resolved. On or before
3. The United States Probation Office shall prepare an Amended Presentence Investigation Report ("PSR") which does not contain the ACCA enhancement. The PSR shall be provided to the court and the parties no later than
4. The parties may file additional sentencing memoranda or other materials relevant to sentencing. The parties may wish to file information pertaining to Defendant's conduct while incarcerated-including educational or vocational activities, treatment or counseling records, and any disciplinary record. Any memoranda or other materials shall be filed at least ten (10) days prior to the resentencing date.
