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Gaines v. United States

United States District Court, C.D. California

April 3, 2017





         On August 19, 1999, after a jury trial before Judge Lourdes G. Baird, Anthony Seids Gaines 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 Gaines to 210 months of imprisonment for each of the Hobbs Act violations (counts 1, 2, 4, 6, 8) to be served concurrently, plus an additional 780 months for violations of 18 U.S.C. § 924(c) (including 60 months for using and carrying a firearm to commit a crime of violence, count 3, and 240 months for each of the three remaining Section 924(c) violation, counts 5, 7, 9). Criminal Case dkts. 291, 292. In total, Gaines was sentenced to 990 consecutive months of imprisonment. Id.

         On September 5, 2002, Gaines filed a petition under 28 U.S.C. § 2255, raising issues that do not arise in the instant matter. United States v. Anthony S Gains, 2:02-cv-06917-CAS (“First Habeas Petition”), dkt. 1. The Court denied Gaines's petition on November 27, 2002. First Habeas Petition dkt. 3.

         On May 6, 2016, Gaines filed the instant motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. See Mot. On September, 162016, the Ninth Circuit authorized Gaines to file a second or successive Section 2255 motion. Dkt. 3. On September 20, 2016, Gaines's Section 2255 motion was manually filed in this Court. Dkt. 4. On November 7, 2016, the government filed its opposition to Gaines's motion. Dkt. 9. (“Opp'n”). On October 26, 2016, Gaines filed his reply. Dkt. 11 (“Reply”).


         A prisoner may move the court to vacate, set aside or correct his sentence if he 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).


         In the instant Section 2255 motion, Gaines 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, his 780-month sentence for carrying and using a firearm in commission of a crime of violence is unconstitutional. The government argues that Gaines is not entitled to relief under Section 2255 because: (a) Gaines's claims are procedurally defaulted; (b) Gaines's motion is time-barred; and (c) Gaines'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. Gaines Has Not Procedurally Defaulted

         The government argues that Gaines's claim is procedurally defaulted because he failed to raise it on appeal. Opp'n at 6-8. “Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised [] only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent.” Bousley v. United States, 523 U.S. 614, 622 (1998) (quotation marks and citations omitted).

         Cause exists when a claim is “novel.” See Reed v. Ross, 468 U.S. 1, 15 (1984). A claim could be novel where a Supreme Court decision: (1) “explicitly overrule[s] one of th[e] Court's precedents”; (2) “may overtur[n] a longstanding and widespread practice to which th[e] Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved”; or (3) “disapprove[s] a practice that th[e] Court arguably has sanctioned in prior cases.” Id. at 17 (quotation marks omitted). As the Supreme Court itself recognized, Johnson II expressly overruled Supreme Court precedent. See Johnson II, 135 S.Ct. at 2563 (“We hold that imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution's guarantee of due process. Our contrary holdings in James [v. ...

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