United States District Court, N.D. California
ORDER DENYING § 2255 MOTION
CLAUDIA WILKEN, United States District Judge
Deandre Snead, represented by counsel, moves under 28 U.S.C.
§ 2255 to vacate, set aside or correct his sentence.
Respondent has filed an opposition to the motion and Movant
has filed a reply. Having considered all of the papers filed
by the parties and the record in this case, the Court DENIES
December 10, 2012, Movant plead guilty, without a plea
agreement, to one count of being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). Applying
United States Sentencing Guideline (USSG) §
2K2.1(a)(4)(a), the Presentence Report (PSR) indicated that
Movant’s base offense level was 20, because Movant had
one prior conviction for a crime of violence, second degree
burglary. Section 2K2.1(a)(4)(a) relies on the Career
Offender Guideline, USSG § 4B1.2, for the definition of
crime of violence. The PSR applied a four-level enhancement
because the offense involved a firearm with an obliterated
serial number and a three-level downward adjustment for
acceptance of responsibility, for a total offense level of
21. The PSR indicated that Movant should be classified in
Criminal History Category V, resulting in an advisory
Guidelines range of seventy to eighty-seven months. If
Movant’s sentence had not been enhanced based on the
crime of violence, his total offense level would have been
15, with a resulting advisory Guidelines range of
thirty-seven to forty-six months.
sentencing, the Court found that Movant’s advisory
Guidelines range was seventy to eighty-seven months and
sentenced him to sixty months of imprisonment. Movant did not
file a direct appeal but, on May 31, 2016, after the Supreme
Court issued its decision in Johnson v. United
States, 135 S.Ct. 2551 (2015), he filed the instant
§ 2255 motion.
Johnson v. United States
Johnson, the Supreme Court addressed a challenge to
the residual clause of the Armed Career Criminal Act (ACCA),
18 U.S.C. § 924(e), which provides that a defendant with
three prior “violent felony” convictions faces a
fifteen-year mandatory-minimum sentence if convicted of
violating 18 U.S.C. § 922(g). 18 U.S.C. § 924(e).
The ACCA residual clause definition of “violent felony,
” which encompasses any crime that “involves
conduct that presents a serious potential risk of physical
injury to another, ” is identical to the residual
clause of the Guidelines’ definition “crime of
violence.” The Ninth Circuit makes “no
distinction between the terms ‘violent felony’ as
defined in the ACCA and ‘crime of violence’ as
defined in § 4B1.2(a)(2) of the Sentencing Guidelines
for purposes of interpreting the residual clauses.”
United States v. Spencer, 724 F.3d 1133, 1138 (9th
Cir. 2013) (quoting United States v. Crews, 621 F.3d
849, 852 n.4 (9th Cir. 2010) (internal alteration marks
Johnson Court held that the residual clause is so
vague that it “both denies fair notice to defendants
and invites arbitrary enforcement by judges.” 135 S.Ct.
at 2557. Accordingly, the Johnson Court held that an
increase to a defendant’s sentence under the clause
“denies due process of law.” In Welch v.
United States, 136 S.Ct. 1357 (2016), the Supreme Court
held that Johnson is retroactive as applied to the
ACCA. However, neither the Supreme Court nor the Ninth
Circuit has addressed whether Johnson is retroactive
as to the identical language in the Sentencing Guidelines.
prisoner in custody under sentence of a federal court, making
a collateral attack against the validity of his or her
conviction or sentence, must do so by way of a motion to
vacate, set aside or correct the sentence pursuant to 28
U.S.C. § 2255 in the court which imposed the sentence.
Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.
1988). Section 2255 was intended to alleviate the burden of
habeas corpus petitions filed by federal prisoners in the
district of confinement by providing an equally broad remedy
in the more convenient jurisdiction of the sentencing court.
United States v. Addonizio, 442 U.S. 178, 185
(1979). Under 28 U.S.C. § 2255, a federal sentencing
court may grant relief if it concludes that a prisoner in
custody was sentenced in violation of the Constitution or
laws of the United States.
government agrees that Johnson applies to the
Sentencing Guidelines. However, the government argues that
Movant procedurally defaulted his claim under
Johnson by failing to file a direct appeal and that
Johnson’s application to the Sentencing
Guidelines is not retroactive. Moreover, the government
argues that Movant’s prior conviction for second-degree
robbery is a crime of violence, as defined by the Guidelines,
even without the residual clause. I. Procedural Default As a
general rule, “claims not raised on direct appeal may
not be raised on collateral review unless the petitioner
shows cause and prejudice.” Massaro v. United
States, 538 U.S. 500, 504 (2003). In order to overcome
this procedural default resulting from the failure to raise
his claims on direct appeal, Movant must show cause for the
default and actual prejudice, or actual innocence.
Sanchez-Llamas v. Oregon, 548 U.S. 331, 350-51
(2006). A movant shows cause by demonstrating “that the
procedural default is due to an ‘objective
factor’ that is ‘external’ to the
petitioner and that ‘cannot be fairly attributed to
him.’” Manning v. Foster, 224 F.3d 1129,
1133 (9th Cir. 2000) (quoting Coleman v. Thompson,
501 U.S. 722, 731-32 (1991)).
government argues that “a defendant who failed to raise
a claim on direct appeal must show ineffective assistance of
counsel to establish cause.” Docket No. 35 at 4. This
narrow interpretation of cause is not supported by case law.
Although, in most cases, a failure to object or failure to
file a direct appeal that is not attributable to ineffective
assistance of counsel is a procedural default, there are
circumstances in which cause may be found. See,
e.g., Reed v. Ross, 468 U.S. 1, 13 (1984)
(“Underlying the concept of cause, however, is at least
the  notion that, absent exceptional circumstances, a
defendant is bound by the tactical decisions of competent
counsel.”) The Supreme Court has held that cause is
found when “the factual or legal basis for a claim was
not reasonably available to counsel” at the time a
direct appeal was or could have been filed. Murray v.
Carrier, 477 U.S. 478, 488 (1986). Accordingly, the
failure to file a direct appeal when the appeal “would
have been futile, because a solid wall of circuit
authority” precluded the appeal does not constitute
procedural default. Eng ...