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Wood v. United States

United States District Court, S.D. California

May 24, 2018




         Petitioner, Robert Leonard Wood (“Petitioner”) filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. Respondent filed a Response and Opposition to the Motion. The Court has reviewed the record, the submissions of the parties, and the supporting exhibits. For the reasons set forth below, the Court DENIES Petitioner's Motion without prejudice.

         I. BACKGROUND

         Petitioner Robert Leonard Wood was charged on March 7, 2002 in two indictments as follows: in case number 02-CR-0624-L Petitioner was charged with three counts of conspiracy to commit murder in violation of 18 U.S.C. § 1959(a)(5), characterized as violent crimes in aid of racketeering (“VCAR”); and in case number 02-CR-0625-L Petitioner was charged with one count of conspiracy to distribute cocaine and cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846. (Indictment, No. 02-CR-0624 [ECF NO. 8]; Indictment, No. 02-CR-0625 [ECF NO. 1.])

         On February 28, 2003, Petitioner pled guilty to Count One of the indictment in No. 02-CR-0624-L and Count One of the indictment in No. 02-CR-0625-L and entered a plea agreement. (Plea Agreement No. 02-CR-0624 [ECF NO. 53]; Plea Agreement, No. 02-CR-0625 [ECF NO 144.]) On July 10, 2003, Petitioner was sentenced by this Court to concurrent sentences of 120 months, three years supervised release, a $1000 fine, and a special assessment of $100 in No. 02-CR-0624-L (“the VCAR case”); and 300 months, five years supervised release and a special assessment of $100 in No. 02-CR-0625-L (“the drug case”). (Amended Judgment, No. 02-CR-0624 [ECF NO. 104]; Amended Judgment, No. 02-CR-0625 [ECF NO. 300.]) [1]

         On July 29, 2003, Petitioner filed a Notice of Appeal. [Notice, No. 02-CR-0624 [ECF NO. 94]; Notice, No. 02-CR-0625 [ECF NO. 242.]) The Ninth Circuit dismissed Petitioner's appeal upon the determination that he knowingly and voluntarily entered a plea waiver, waiving his right to appeal. United States v. Wood, 117 Fed.Appx. 519, 521 (9th Cir. 2004). Petitioner filed his first petition under 28 U.S.C. 2255 in this Court on December 2, 2005. (Mot. [ECF NO. 176.]) On July 24, 2007, this Court dismissed Petitioner's petition as barred by his appellate waiver, and to the extent Petitioner's claims were not barred by waiver, the Court denied his claims on the merits. (Order [ECF NO. 224.])

         On May 17, 2016, Petitioner filed an application in the Ninth Circuit Court of Appeals for leave to file a second or successive section 2255 motion in light of Johnson v. United States, 135 S.Ct. 2551 (2015). Wood v. United States, Application, No. 16-71500, (9th Cir. May 17, 2016). On June 24, 2016, Petitioner filed the current petition in case numbers 02-CR-0624 and 02-CR-0625 to protect the statute of limitations while the application for leave to file a second or successive section 2255 petition was pending before the Ninth Circuit. [Motion, No. 02-CR-0624 [ECF NO. 297]; Motion, No. 02-CR-0625 [ECF NO. 689.] On December 22, 2016, the Ninth Circuit granted Petitioner's application for leave to file a second or successive petition. See Wood v. United States, C.A. No. 16-71500. This Court issued a briefing schedule on Petitioner's Motion and the Government filed a Response in Opposition on May 19, 2017, followed by Petitioner's Reply on May 22, 2017.


         Under 28 U.S.C. § 2255, a federal prisoner “may move the court which imposed the sentence to vacate, set aside or correct the sentence” on “the ground 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). A prisoner seeking relief pursuant to section 2255 must allege a constitutional, jurisdictional, or otherwise “fundamental defect which inherently results in a complete miscarriage of justice [or] an omission inconsistent with the rudimentary demands of fair procedure.” Hill v. United States, 368 U.S. 424, 428 (1962). It is incumbent on the petitioner to show by a preponderance of the evidence that he is entitled to relief. Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002).

         Petitioner contends that his sentence was improperly enhanced under the residual clause of the career offender statute, U.S.S.G. § 4B1.2, which he contends has since been found to be unconstitutional under Johnson. (Mot. at 2). Petitioner argues by analogy that the Armed Career Criminal Act (“ACCA”) residual clause held void-for-vagueness in Johnson is identical to the “residual clause” in the career offender definition of a “crime of violence” under USSG § 4B1.2(a)(2), therefore the Court must reconsider his sentence without the career offender designation. (Id.) Despite the passage of a great deal of time since Petitioner's sentencing, he argues that his claims are not procedurally barred because he could not have raised them prior to Johnson's holding. (Id. at 16).

         The Government objects and contends the Court should dismiss or deny the Petition for six reasons: (1) Petitioner waived his right to collaterally attack his sentence through his plea; (2) Petitioner procedurally defaulted his claim regarding the career offender guidelines calculation because he did not raise this claim on appeal; (3) Petitioner cannot demonstrate that the residual clause in USSG § 4B1.2 was relied upon in his sentencing; (4) Petitioner cannot raise a due process challenge to the application of the advisory or mandatory guidelines after Beckles v. United States, 137 S.Ct. 886, 890 (2017); (5) even if Johnson allows due process vagueness challenges to mandatory guidelines, it represents a procedural and not substantive rule which does not apply retroactively to seek collateral relief; (6) California Penal Code § 211 remains an enumerated crime of violence independent of the residual clause therefore the Court had an independent basis upon which to find that Petitioner qualified as a career offender. (Oppo at 2).

         A. Waiver and Successiveness

         As part of his plea agreement, Petitioner waived the right to appeal and to collaterally attack his judgment and sentence under 28 U.S.C. § 2255 unless the Court imposed a sentence in excess of the high end of the guideline range. (Plea Agreement at 14, No. 02-cr-0624 [ECF NO. 53]; Plea Agreement at 14, No. 02-cr-0625 [ECF NO. 144]). The Court previously found that Petitioner's waiver of his appellate and collateral attack rights was knowing and voluntary, and that none of the potential limitations to the validity of his waiver were applicable. (Order at 3 [ECF NO. 482.]) Petitioners waiver would therefore appear to foreclose his right to bring this challenge, however the 9thCircuit in United States v. Torres, 828 F.3d 1113, 1125 (9th Cir. 2016), held that a defendant's waiver does not bar an appeal if the defendant was sentenced under a Guidelines provision that has since been found to be unconstitutionally vague. Although the reasoning of the Ninth Circuit is sparse in Torres, the Court finds that Petitioner's prior waiver does not prohibit him from challenging his sentence to the extent it was enhanced under the now unconstitutional residual clause of § 4B1.2.

         As previously noted, Petitioner has likewise overcome the hurdle to filing a second or successive petition pursuant to section 2255 in light of the Ninth Circuit's authorization under 28 U.S.C. § 2255 (h)(2) finding that Petitioner's motion “makes a prima facie showing for relief under Johnson v. United States.” (Wood v. United States, No. 16-71500 (Dec. 22, 2016).) The appellate Court further noted that “Johnson announced a new substantive rule that has retroactive effect in cases on collateral review, ” citing Welch v. United States, 136 S.Ct. 1257, 1264-68 (2016). (Id.)

         B. Procedural Default

         A petitioner must first raise his claim on direct appeal before challenging his sentence under § 2255 or he procedurally defaults the claim. United States v. Ratigan, 351 F.3d 957, 962 (9th Cir.2003). A procedural default may be overcome and a petitioner may raise the claim in a habeas petition “‘only if the defendant can first demonstrate either cause and actual prejudice ...

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