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Wade v. United States

United States District Court, C.D. California

March 16, 2017

YVETTE WADE Plaintiff,
v.
UNITED STATES OF AMERICA Defendant.

          ORDER

          CHRISTINA A. SNYDER, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION AND BACKGROUND

         On 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. Id.

         On July 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.

         On 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”).

         II. LEGAL STANDARD

         A 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).

         III. DISCUSSION

         In the 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).

         A. Johnson v. United States

         Federal 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 2556 (2015).

         On June 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.

         B. Wade Has Not ...


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