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concluding that "Dean is not retroactive because it is a new procedural rule designed to enhance the accuracy of a conviction or sentence by regulating the manner of determining the defendant's culpability."
Summary of this case from Beasley v. WerlichOpinion
No. 3:13-cr-00335-HZ-1
03-09-2018
UNITED STATES OF AMERICA , Plaintiff, v. DANIEL ARTHUR CARTER, Defendant.
Billy Williams United States Attorney Jane H. Shoemaker Assistant United States Attorney 1000 S.W. Third Avenue, Suite 600 Portland, Oregon 97204 Attorneys for Plaintiff Per C. Olson Hoevet Olson Howes, PC 1000 SW Broadway, Suite 1500 Portland, Oregon 97205 Attorneys for Defendant
OPINION & ORDER Billy Williams
United States Attorney
Jane H. Shoemaker
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97204
Attorneys for Plaintiff Per C. Olson
Hoevet Olson Howes, PC
1000 SW Broadway, Suite 1500
Portland, Oregon 97205
Attorneys for Defendant HERNÁNDEZ, District Judge:
Defendant moves to vacate or to correct his sentence pursuant to 28 U.S.C. § 2255. ECF 56. Because Defendant's claims have no merit or have been waived, the Court denies Defendant's Motion. Because the Motion and record conclusively show Defendant is not entitled to relief, no evidentiary hearing is required.
FACTUAL & PROCEDURAL BACKGROUND
On July 16, 2013, a grand jury charged Defendant with two counts of armed bank robbery in violation of 18 U.S.C. § 2113(a), (d) (Counts One and Three) and two counts of using a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1) (Counts Two and Four). ECF 26 (Indictment). The Indictment stemmed from two separate armed bank robberies on October 22, 2012, and November 21, 2012, in the Portland metropolitan area.
On September 30, 2013, Defendant pleaded guilty to the two armed bank robbery counts (Counts One and Three) and one count of using a firearm during a crime of violence (Count Two). ECF 26 (Indictment), ECF 38 (Plea Agreement), ECF 39 (Plea Petition). On January 13, 2014, pursuant to a Plea Agreement that the parties entered into pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), this Court sentenced Defendant to 186 months imprisonment on Count One, a mandatory minimum sentence of 84 months imprisonment on Count Two to be served consecutively to the sentence on Count One, and 186 months imprisonment on Count Three to be served concurrently with the sentence imposed on Count One. ECF 44 (Judgment and Commitment). Pursuant to the Plea Agreement, the Court dismissed Count Four. As part of his Plea Agreement, Defendant waived his right to appeal or to collaterally attack his conviction or sentence. Accordingly, Plaintiff did not appeal his conviction or his sentence.
STANDARDS
Under § 2255, a federal prisoner in custody may move the sentencing court to vacate, set aside, or correct a sentence on the basis that the sentence violates the Constitution or the laws of the United States. 28 U.S.C. § 2255(a); United States v. Withers, 638 F.3d 1055, 1062 (9th Cir. 2011) (citing Davis v. United States, 417 U.S. 333 (1974)).
The petitioner must demonstrate that an error of constitutional magnitude 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) ("We hold now that Brecht's harmless error standard applies to habeas cases under section 2255, just as it does to those under section 2254.").
A district court must grant a hearing "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief[.]" 28 U.S.C. § 2255(b). In determining whether a § 2255 motion requires a hearing, "the standard essentially is whether the movant has made specific factual allegations that, if true, state a claim on which relief could be granted." Withers, 638 F.3d at 1062 (brackets and internal quotation marks omitted). A district court may dismiss a § 2255 motion based on a facial review of the record "only if the allegations in the motion, when viewed against the record, do not give rise to a claim for relief or are 'palpably incredible or patently frivolous.'" Id. at 1062-63 (quoting United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984)); see United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980) (conclusory statements in a § 2255 motion are insufficient to require a hearing).
Habeas review is not an alternative to direct appeal. Bousley v. United States, 523 U.S. 614, 621 (1998) ("Habeas review is an extraordinary remedy and will not be allowed to do service for an appeal.") (internal quotation marks omitted). Absent a showing of cause and prejudice, a habeas petitioner procedurally defaults all claims that were not raised in his direct appeal, other than claims asserting ineffective assistance of counsel. Massaro v. United States, 538 U.S. 500, 504 (2003). "[T]o obtain collateral relief based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both (1) 'cause' excusing his double procedural default, and (2) 'actual prejudice' resulting from the errors of which he complains." United States v. Frady, 456 U.S. 152, 167-68 (1982). To demonstrate "cause," the defendant must establish that "'some objective factor external to the defense impeded his adherence to the procedural rule." United States v. Skurdal, 341 F.3d 921, 925 (9th Cir. 2003) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). For "prejudice," the defendant must show "not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Frady, 456 U.S. at 170. The district court does not need to address both prongs if the defendant fails to satisfy one. Id. at 168.
A defendant who fails to show cause and prejudice to excuse a procedural default, may still obtain review on a § 2255 collateral attack by demonstrating the likelihood of his actual innocence. United States v. Braswell, 501 F.3d 1147, 1150 (9th Cir. 2007). To establish actual innocence, the defendant must demonstrate that in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him. Alaimalo v. United States, 645 F.3d 1042, 1047 (9th Cir. 2011); see also Bousley, 523 U.S. at 623 ("'actual innocence' means factual innocence, not mere legal insufficiency").
DISCUSSION
In his § 2255 Motion, Defendant raises two grounds for relief. First, Defendant contends his sentence on Count Two should be vacated because armed robbery as charged in Count One is not a "crime of violence" within the meaning of § 924(c)(1)(A)(ii). Second, in the alternative, Defendant contends his sentence should be vacated and this Court should re-sentence Defendant because, pursuant to since-overruled Ninth Circuit Court of Appeals precedent, the Court did not consider at sentencing the effect of the mandatory-minimum sentence on Count Two when it issued its sentences on Counts One and Three.
I. Armed Bank Robbery as a "Crime of Violence" under § 924(c)
As noted, in his first ground for relief Defendant contends armed bank robbery as charged in Count One is not a "crime of violence" and, therefore, it cannot serve as the predicate offense for the Count Two charge of using a firearm during a crime of violence under 18 U.S.C. § 924(c)(1)(A)(ii). Accordingly, Defendant contends his conviction and sentence on Count Two should be vacated.
The government contends Defendant's first ground for relief (1) is time barred by the one-year statute of limitations in § 2255(f); (2) was waived by Defendant when he pleaded guilty pursuant to a plea agreement that contained a waiver of Defendant's right to collaterally attack any aspect of his conviction or sentence except on grounds of ineffective assistance of counsel; (3) is procedurally defaulted; and (4) fails on the merits.
The Court need not consider the government's procedural arguments as to Defendant's first ground for relief because the merits analysis is straightforward. Since Defendant filed his Motion, the Ninth Circuit held in a published decision that armed bank robbery under § 2113(a), (d) is a "crime of violence" under the "force clause" of § 924(c)(3)(A), which defines "crime of violence" for purposes of § 924(c)(1)(A)(ii). United States v. Watson, ___ F.3d ___, 2018 WL 650990, at *2-*3 (9th Cir. Feb. 1, 2018).
Accordingly, on this record the Court concludes Defendant is not entitled to relief on his first ground for relief.
II. Consideration of Mandatory-Minimum Sentence on Counts One and Three
In his second ground for relief Defendant contends the Court should vacate his sentence and re-sentence him on the basis that the Court, pursuant to since-overruled Ninth Circuit precedent, did not consider the effect of the mandatory-minimum sentence required by Count Two when the Court determined whether the parties' stipulated sentences on Counts One and Three were reasonable under 18 U.S.C. § 3553(a). In particular, Defendant contends this Court sentenced him pursuant to the Ninth Circuit's direction in United States v. Working, 287 F.3d 801, 806-09 (9th Cir. 2002), not to consider the effect of the mandatory-minimum sentences under § 924(c) when fashioning appropriate sentences on the predicate armed-robbery counts. Defendant argues the Supreme Court overruled Working when it held "[n]othing in § 924(c) restricts the authority conferred on sentencing courts by § 3553(a) and the related provisions to consider a sentence imposed under § 924(c) when calculating a just sentence for the predicate count." Dean v. United States, 137 S. Ct. 1170, 1176-77 (2017).
Defendant, however, waived the right to collaterally attack his sentence on this basis. As noted, at the time that he pleaded guilty Defendant waived his right to appeal and to collaterally attack his conviction or sentence. Paragraph 17 of the Plea Agreement provided:
Waiver of Appeal/Post-Conviction Relief : Defendant knowingly and voluntarily waives the right to appeal from any aspect of the conviction and sentence on any grounds, except for a claim that the sentence imposed exceeds the statutory maximum. Should defendant seek an appeal, despite this waiver, the USAO may take any position on any issue on appeal. Defendant also waives the right to file any collateral attack, including a motion under 28 U.S.C. § 2255, challenging any aspect of the conviction or sentence on any grounds, except on grounds of ineffective assistance of counsel, and except as provided in Fed. R. Crim. P. 33 and 18 U.S .C. § 3582(c)(2).ECF 38, at 8.
The only argument Defendant makes in opposition to the government's contention that Defendant waived his right to bring this Motion under § 2255 is that such waivers will not be enforced if "the sentence violates the law." See United States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007). "A sentence is illegal if it exceeds the permissible statutory penalty for the crime or violates the Constitution." Id.
Neither circumstance applies to this case. Defendant's concurrent 186-month sentences on the armed bank robbery counts were well below the 25-year maximum sentence for each count. Accordingly, Defendant's sentence does not exceed the permissible statutory penalty.
Moreover, the Ninth Circuit's holding in Working and the Supreme Court's holding in Dean were grounded in those courts' respective interpretations of the interaction between the mandatory-minimums set out in § 924(c) and the general authority of the court to fashion an appropriate sentence for the predicate crime(s) under § 3553(a). Neither case was grounded in constitutional principles. Nothing in Dean, therefore, rendered Defendant's sentence or sentencing proceedings to be in violation of the constitution.
On this record, therefore, the Court concludes Defendant waived his right to collaterally attack his sentence on this basis and, therefore, concludes Defendant is not entitled to relief on his second ground for relief. In any event, even if Defendant had not waived his right to collaterally attack his sentence on this basis, the Court notes Defendant's second ground for relief would fail on the merits because the rule that the Supreme Court announced in Dean is not retroactive because it is a new procedural rule "designed to enhance the accuracy of a conviction or sentence by regulating 'the manner of determining the defendant's culpability.'" Montgomery v. Louisiana, 136 S. Ct. 718, 730 (2016) (quoting Schriro v. Summerlin, 542 U.S. 348, 353 (2004)) (emphasis omitted).
III. Certificate of Appealability
The Court also denies a Certificate of Appealability ("COA"). Issuance of a COA requires a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2255(c)(2). As noted, Watson forecloses Defendant's argument that armed bank robbery is not a "crime of violence" under § 924(c), and Defendant waived his right to collaterally attack his sentence on the basis that the Court was permitted to consider the effect of his mandatory-minimum sentence pursuant to § 924(c) when it determined whether the parties' stipulated sentences for the armed bank robbery convictions were reasonable under § 3553(a). The Court finds reasonable judges would not differ with the reasoning expressed in this Opinion on those issues. Thus, the Court denies a COA.
CONCLUSION
For these reasons, the Court denies Defendant's Amended Motion to Vacate, Set Aside or Correct Sentence [56].
IT IS SO ORDERED.
DATED this 9 day of March, 2018.
/s/_________
MARCO A. HERNÁNDEZ
United States District Judge