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, 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.
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.
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”).
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).
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).
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.
Gaines Has Not Procedurally Defaulted
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).
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. ...