United States v. Snead

          ORDER DENYING § 2255 MOTION

          CLAUDIA WILKEN, United States District Judge

         Movant 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.^[1] Having considered all of the papers filed by the parties and the record in this case, the Court DENIES the motion.

         BACKGROUND

         A. Procedural Background

         On 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.

         At 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.

         B. Johnson v. United States

         In 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 omitted).

         The 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.

         LEGAL STANDARD

         A 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.

         DISCUSSION

         The 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)).

         The 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 ...