United States District Court, C.D. California
CHRISTINA A. SNYDER, UNITED STATES DISTRICT JUDGE
INTRODUCTION AND BACKGROUND
August 19, 1999, after a jury trial before Judge Lourdes G.
Baird, Yvette Wade was convicted of: (1) one count of
conspiring to commit a Hobbs Act robbery, in violation of 18
U.S.C. § 1951; (2) four counts of committing a Hobbs Act
robbery, in violation of Section 1951; and (3) four counts of
using and carrying a firearm during a crime of violence, in
violation of 18 U.S.C. § 924(c). Dkt. 1
(“Mot.”) at 1; United States v. Gaines et
al, 2:99-cr-00257 (C.D. Cal. Aug. 19, 1999)
(“Criminal Case”), dkt. 231. Consequently, on
December 21, 1999, the court sentenced Wade to 97 months of
imprisonment for each of the Hobbs Act violations (counts 1,
2, 4, 6, 8) to be served concurrently; a mandatory
consecutive sentence of 60 months for using and carrying a
firearm to commit a crime of violence, in violation of 18
U.S.C. § 924(c) (count 3); and 240 months for each of
the three remaining violations of 18 U.S.C. § 924(c)
(counts 5, 7, 9) to be served consecutively (a total of 720
months). Criminal Case dkts. 293, 294. In total, Wade was
sentenced to 877 consecutive months of imprisonment.
10, 2002, Wade filed a petition under 28 U.S.C. § 2255,
raising issues that do not arise in the instant matter.
United States v. Yvette C Wade, 2:02-cv-05277-LGB
(“First Habeas Petition”), dkt. 1. The Court
denied Wade's petition on February 28, 2003. First Habeas
Petition dkt. 3.
April 27, 2016, Wade filed the instant motion to vacate, set
aside, or correct her sentence pursuant to 28 U.S.C. §
2255. See Mot. On August 19, 2016, the Ninth Circuit
Court of Appeals authorized Wade to file a second or
successive Section 2255 motion. Dkt. 3. On August 30, 2016,
Wade's Section 2255 motion was lodged in this Court.
Id. On September 29, 2016, the government filed its
opposition to Wade's motion. Dkt. 9.
(“Opp'n”). On October 26, 2016, Wade filed
her reply. Dkt. 12 (“Reply”).
prisoner may move the court to vacate, set aside or correct
her sentence if she can show “that the sentence was
imposed in violation of the Constitution or laws of the
United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to
collateral attack[.]” 28 U.S.C. § 2255(a).
instant Section 2255 motion, Wade argues that, in the wake of
Johnson v. United States, 135 S.Ct. 2551 (2015)
(“Johnson II”), a Hobbs Act robbery is
no longer a crime of violence under Section 924(c) and,
therefore, her 780-month sentence for carrying and using a
firearm in commission of a crime of violence is
unconstitutional. The government argues that Wade is not
entitled to relief under Section 2255 because: (a) Wade's
claims are procedurally defaulted; (b) Wade's motion is
time-barred; and (c) Wade's motion fails on the merits
because (i) Johnson II does not apply to Section
924(c), and (ii) Hobbs Act robbery remains a crime of
violence under Section 924(c).
Johnson v. United States
law forbids certain people-convicted felons, persons
committed to mental institutions, and drug users-to ship,
possess, and receive firearms. 18 U.S.C. § 922(g). If a
violator has three or more earlier convictions for a
“serious drug offense” or a “violent
felony, ” the Armed Career Criminal Act
(“ACCA”) increases her prison term to a minimum
of 15 years. The Act defines “violent felony” as:
any crime punishable by imprisonment for a term exceeding one
year . . . that-
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.
18 U.S.C. § 924(e)(2)(B) (emphasis added). The closing
words of this definition, italicized above, are known as the
ACCA's residual clause. Johnson II, 135 S.Ct. at
26, 2015, the Supreme Court held in Johnson II that
imposing an increased sentence under the ACCA's residual
clause violates due process. 135 S.Ct. at 2557. On October
19, 2015, in Dimaya v. Lynch, 803 F.3d 1110 (9th
Cir. 2015), the Ninth Circuit extended Johnson II to
a materially identical residual clause in 18 U.S.C. §
16, which defined a “crime of violence” for the
purposes of identifying offenses that merit deportation of
non-citizen defendants under the Immigration and Nationality
Act. On April 18, 2016, in Welch v. United States,
136 S.Ct. 1257 (2016), the Supreme Court held that
Johnson II announced a new substantive rule of
constitutional law that applies retroactively on collateral
review. Welch, 136 S.Ct. at 1264-68.
Wade Has Not ...