United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
a federal prisoner, brings a challenge to his sentence under
28 U.S.C. § 2255. ECF No. 43. Movant seeks relief
pursuant to Johnson v. United States, 135 S.Ct. 2551
(2015) and progeny. Id., see also ECF No.
59 (supplemental brief asserting right to relief under
Sessions v. Dimaya, 138 S.Ct. 1204 (2017)). The
United States opposes the motion, ECF No. 53, and movant has
replied, ECF No. 54. Supplemental briefs were filed at the
request of the court. ECF Nos. 56, 58.
August 26, 1999, Mr. Reid and a co-defendant were charged by
indictment with attempted Hobbs Act robbery of a Pizza Hut
restaurant, in violation of 18 U.S.C. § 1951(b) (Count
One); and with use of a firearm during and in relation to the
attempted robbery, in violation of § 924(c)(1) (Count
Two). ECF Nos. 1, 55 at 2. Mr. Reid pled guilty to the gun
charge on November 17, 1999, and the attempted robbery count
was dismissed at sentencing on July 27, 2000. ECF Nos. 19,
the instant motion was filed, neither party had access to the
1999 indictment on the court's Electronic Filing system,
and the court's paper file had been archived. Perhaps for
this reason, the initial § 2255 motion asserted in error
that Mr. Reid's § 924(c) conviction was predicated
on an uncharged California robbery. ECF No. 43 at 3. Movant
contended that Cal. Penal Code § 211 robbery cannot
constitute a crime of violence for purposes of § 924(c)
after Johnson, supra. Id. In
opposition, the United States asserted that the predicate
crime of violence was most likely Hobbs Act robbery, not
California robbery, and that the holding of Johnson
had no effect on the longstanding principle that Hobbs Act
robbery constitutes a violent crime for purposes of §
924(c). ECF No. 53. The court retrieved the indictment from
archives, determined that Count One had charged attempted
Hobbs Act robbery, and ordered further briefing. ECF No. 55.
now contends that attempted Hobbs Act robbery (1) is not
categorically a crime of violence, and (2) cannot be
construed as a violent crime under § 924(c)'s
residual clause because that clause is unconstitutional under
Johnson. ECF No. 56 at 1-8. He also argues that
Dimaya, supra, provides additional grounds
for relief. ECF No. 59.
district court has jurisdiction over a § 2255 motion if
the movant is “in custody” at the time of filing.
Maleng v. Cook, 490 U.S. 488, 491 (1989); United
States v. Spawr Optical Research, Inc., 864 F.2d 1467,
1470 (9th Cir. 1988). The custody requirement is met if the
defendant is “subject to” supervised release.
Matus-Leva v. United States, 287 F.3d 758, 761 (9th
Cir. 2002) (citing Jones v. Cunningham, 371 U.S.
236, 242-43 (1963)).
Reid was sentenced on July 25, 2000, to 44 months
imprisonment followed by 36 months supervised release. ECF
No. 35. On December 3, 2003, Mr. Reid was indicted in the
District of Nevada for escaping from a BOP halfway house on
or about October 14, 2003. ECF No. 54-2. Movant was serving
the instant sentence when he escaped. The Nevada federal case
ended in a guilty plea. Id. Meanwhile, Mr. Reid had
been arrested and convicted on Nevada state charges; he was
writted to federal court for proceedings in the escape case.
Id. at 14. Present federal counsel represents that
movant is serving a life sentence, with the possibility of
parole, for a 2003 Nevada state conviction. ECF No. 56 at 13.
The government does not dispute this representation.
appears from these facts that when the instant § 2255
motion was filed on June 27, 2016, Mr. Reid was in Nevada
custody rather than federal custody, but had not served his
full sentence in the instant case. Accordingly, he remains
“subject to” additional imprisonment and
supervised release in this case. This court therefore has
jurisdiction to consider the motion. See Harrison v.
Ollison, 519 F.3d 952, 955 n.2 (9th Cir. 2008) (finding
that a defendant in state prison, with a “pending
sentence of federal parole, . . . is ‘in custody'
for purposes of the federal habeas provisions, § 2241(c)
and § 2255”).
PERTINENT STATUTORY FRAMEWORK
18 U.S.C. § 924(c), under which Mr. Reid was charged in
Count Two and to which he pled guilty, provides in pertinent
part as follows:
(1)(A) Except to the extent that a greater minimum sentence
is otherwise provided by this subsection or by any other
provision of law, any person who, during and in relation to
any crime of violence or drug trafficking crime
(including a crime of violence or drug trafficking crime that
provides for an enhanced punishment if committed by the use
of a deadly or dangerous weapon or device) for which the
person may be prosecuted in a court of the United States,
uses or carries a firearm, or who, in furtherance of any such