Morrison v. United States

THOMAS JEFFREY MORRISON, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Criminal Case No. 95-cr-0708 DMS

Civil Case No. 16-cv-1517 DMS

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

June 12, 2019

ORDER GRANTING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255

Pending before the Court on remand is Petitioner Thomas Jeffrey Morrison's Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255. Following the appeal mandate hearing, Respondent United States of America ("Government") filed a supplemental response, and Petitioner filed a supplemental reply. For the reasons set forth below, the Court grants Petitioner's motion.

I.BACKGROUND

On May 17, 1995, a grand jury charged Petitioner with two counts of federal bank robbery in violation of 18 U.S.C. § 2113(a). (SER 1-2.) Petitioner pled guilty to both counts. (Pet'r's Mot. at 3; Resp't's Opp'n at 2.)

On June 5, 1995, the Government filed an information notifying Petitioner that it intended to seek a life sentence pursuant to the federal three-strikes law, codified at 18 U.S.C. § 3559(c)(1)(A)(i). (SER 3-4.) Under that law, the district judge must sentence to life in prison any defendant who (1) is convicted in federal court of a "serious violent felony"; and (2) has two or more prior "serious violent felony" convictions in federal or state courts. 18 U.S.C. § 3559(c)(1)(A)(i); U.S. v. Morrison, 113 F.3d 1020, 1020 (9th Cir. 1997).

Petitioner's two prior "serious violent felony" offenses were based on his 1979 robbery conviction under California Penal Code § 211, for which he received a three-year prison term, and 1990 robbery conviction under California Penal Code §§ 211 and 12022.5, for which he was sentenced to eight years in prison. (Id.) As to his 1990 conviction, Petitioner pled guilty to a violation of § 211 and admitted to a sentence enhancement under § 12022.5 for use of firearm. (SER 8-9; 21-32.) He was sentenced to five years on the robbery and three years consecutive on the enhancement, for a total term of eight years. (SER 59-60.)

On October 6, 1995, Petitioner moved to dismiss the three-strikes sentencing enhancement. He argued, in part, that his 1990 robbery offense did not qualify for enhancement because he did not use or threaten to use a firearm or other dangerous weapon. (SER 6.)

On March 15, 1996, District Judge Irma E. Gonzales held a sentencing hearing. At the hearing, Judge Gonzales found that Petitioner's 1979 robbery conviction constitutes a "predicate offense" under § 3559(c)(3). (SER 187.) As to Petitioner's 1990 robbery conviction, Judge Gonzales determined that Petitioner failed to meet his burden of showing that he did not use a firearm at the time he committed his offense, while the Government established the 1990 robbery was "a predicate offense which qualifies under the three-strikes law." (SER 187, 203-210.) Without specifying which clause she was relying on, Judge Gonzales held that the 1979 and 1990 robbery convictions "are both serious violent felonies which qualify under the three-strikes law[.]" (SER 211.) Accordingly, Petitioner was sentenced to life imprisonment pursuant to the three-strikes enhancement. On March 22, 1996, Petitioner appealed his conviction, which the Ninth Circuit affirmed. See U.S. v.Morrison, 113 F.3d 1020 (9th Cir. 1997).

Eighteen years later, the Supreme Court issued its decision in Johnson v. United States, 135 S. Ct. 2551 (2015), which invalidated the residual clause of the Armed Career Criminal Act ("ACCA") as unconstitutionally vague. Within one year after Johnson was decided, Petitioner filed the instant motion on grounds that at least one of his prior robbery convictions no longer qualifies as a "serious violent felony" under a similar residual clause in the three-strikes law. This Court found the residual clause in the three-strikes law to be distinguishable from Johnson, and determined that it was not unconstitutionally vague. Petitioner appealed to the Ninth Circuit.

During the pendency of the appeal, the Supreme Court issued its decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018). In Dimaya, the Supreme Court applied Johnson, and struck down as unconstitutionally vague the residual clause in 18 U.S.C. § 16(b)—which is "materially indistinguishable" from the residual clause in the three-strikes law. See United States v. Morrison, 751 Fed. Appx. 1026, 1027 (9th Cir. 2019). Thus, the Ninth Circuit remanded for the Court to reconsider "in light of that new decision." See id. at 1027.

II.LEGAL STANDARD

A. 28 U.S.C. § 2255

Pursuant to § 2255, a prisoner in custody may move the federal court that imposed a sentence upon him to vacate, set aside, or correct that 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). If the court determines that relief is warranted under § 2255, it must "vacate and set the judgment aside" and "discharge the prisoner or resentencehim or grant a new trial or correct the sentence as may appear appropriate." Id. § 2255(b).

B. Johnson and Welch

In Johnson v. U.S., 135 S. Ct. 2551, 2555 (2015), the Supreme Court found the residual clause of the Armed Career Criminal Act ("ACCA") to be unconstitutionally vague. The ACCA defined "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[.]

Id. at 2555-56 (quoting 18 U.S.C. § 924(e)(2)(B)) (emphasis in original). The italicized portion of the ACCA has come to be known as the residual clause. Id.

In finding the residual clause to be unconstitutional, the Supreme Court first explained the clause left "grave uncertainty about how to estimate the risk posed by a crime" because "[i]t ties the judicial assessment of risk to a judicially imagined 'ordinary case' of a crime, not to real-world facts or statutory elements." Johnson, 135 S. Ct. at 2557. The Court also reasoned that the clause left "uncertainty about how much risk it takes for a crime to qualify as a violent felony" because it forced courts to determine potential risk "in light of the four enumerated crimes—burglary, arson, extortion, and crimes involving the use of explosives[, which] are 'far from clear in respect to the degree of risk each poses.'" Id. at 2558 (quoting Begay v. United States, 553 U.S. 137, 143 (2008)). Accordingly, the Court concluded "imposing an increased sentence under the residual clause of the [ACCA] violates the Constitution's guarantee of due process." Id. at 2563. Several years later, the Supreme Court held that Johnson applies retroactively to cases on collateral review in Welch v. U.S., 136 S. Ct. 1257 (2016).

C. Dimaya

In Sessions v. Dimaya, 138 S.Ct. 1204 (2018), the Supreme Court examined a similar vagueness issue in the Immigration and Nationality Act ("INA"). The INA makes deportable any alien convicted of an "aggravated felony" after entering the United States and defines "aggravated felony" to include many offenses and types of offenses. Among the items on the list of offenses is "a crime of violence," as defined by 18 U.S.C. § 16. That provision defines "crime of violence" to mean:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 16 (emphasis added). Courts refer to the italicized portion as the residual clause.

Despite minor textual differences from the residual clause in Johnson, the Supreme Court held that the residual clause in § 16 violated the "promise" of due process "in just the same way." 138 S. Ct. at 1215.

D. Three-Strikes Law

The federal three-strikes law "enhances the sentence of a defendant who is convicted of a serious violent felony when the defendant previously was convicted of at least two other serious violent felonies." United States v. Kaluna, 192 F.3d 1188, 1195 (9th Cir. 1999); 18 U.S.C. § 3559(c)(1)(A)(i). Section 3559(c)(2)(F) defines a "serious violent felony" as:

(i) a Federal or State offense, by whatever designation and wherever committed, consisting of ... robbery (as described in section 2111, 2113, or 2118) ... and

(ii) any other offense punishable by a maximum term of imprisonment of 10 years or more that has as an element the use, attempted use, or threatened use of physical force against the person of another or that,by its nature, involves a substantial risk that physical force against the person of another may be used in the course of committing the offense[.]

18 U.S.C. § 3559(c)(2)(F) (emphasis added). Courts generally refer to the first clause as the "enumerated offense clause," see 18 U.S.C. § 3559(c)(2)(F)(i), the first part of the disjunctive statement in the second clause as the "elements clause," see 18 U.S.C. § 3559(c)(2)(F)(ii), and the second part of the disjunctive statement as the "residual clause." See id.

III.DISCUSSION

Petitioner contends his 1990 robbery conviction under California Penal Code § 211 was categorized as a "serious violent felony" based on the vague residual clause in the three-strikes law.¹ As such, Petitioner claims he no longer has two or more predicate "serious violent felony" offenses required for the three-strikes enhancement. The Government no longer disputes the residual clause in the three-strikes law is unconstitutionally vague...