United States v. Dade

6 F.4th 1013

UNITED STATES of America, Plaintiff-Appellee,

v.John Ernest DADE, Defendant-Appellant.

No. 19-35172

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 4, 2020 Portland, Oregon

Filed July 28, 2021

Miles Pope (argued) and Melissa Winberg, Trial Attorneys, Federal Defender Services of Idaho, Boise, Idaho; for Defendant-Appellant.

Syrena Case Hargrove (argued), Assistant United States Attorney; Bart M. Davis, United States Attorney; United States Attorney's Office, Boise, Idaho; for Plaintiff-Appellee.

Before: Marsha S. Berzon and Daniel P. Collins, Circuit Judges, and Jennifer Choe-Groves,^* Judge.

CHOE-GROVES, Judge:

Defendant John Ernest Dade appeals from the district court's denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. Dade challenges his convictions for interstate domestic violence, in violation of 18 U.S.C. § 2261(a)(1), and use of a firearm in relation to a violent crime, in violation of 18 U.S.C. § 924(c), arguing that the predicate offenses underlying these convictions no longer qualify as categorical "crimes of violence" in light of Sessions v. Dimaya , ––– U.S. ––––, 138 S. Ct. 1204, 200 L.Ed.2d 549 (2018). The government contends that Dade has not demonstrated that he was convicted and sentenced in violation of Dimaya and therefore fails to satisfy the gatekeeping provision set forth in 28 U.S.C. § 2255(h)(2). We agree and affirm.

I.

In 2002, a grand jury returned a second superseding indictment charging Dade with eight counts: threatening interstate communications, in violation of 18 U.S.C. § 875(c) (Count 1); interstate stalking, in violation of 18 U.S.C. § 2261A(2)(B)(i) (Count 2); interstate domestic violence, in violation of 18 U.S.C. § 2261(a)(1) (Counts 3, 5, and 6)¹ ; brandishing a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) and (C)(i) (Counts 4 and 7); and witness tampering, in violation of 18 U.S.C. § 1512(b)(2)(A) and (b)(3) (Count 8). The charges stemmed from Dade's actions against Teresa Aikele, his former girlfriend and the mother of their son.

Dade proceeded to a jury trial. Viewed in the light most favorable to the verdict, the trial evidence established the following regarding the events that form the basis of Count 6 (interstate domestic violence). On October 20, 2000, Aikele received a call from Dade from her own home phone while she was at work. He still had a key to her house and had let himself in. When Aikele got home, he was still there. Aikele testified that he wanted her to go out with him and have dinner and go dancing. When she refused, he pulled her off the loveseat on which she was sitting and threw her onto the floor. He started punching her in the stomach and took her pants off. She testified that he penetrated her with his fingers. He then grabbed her hair and dragged her into the bedroom. In the bedroom, he handcuffed her, pulled her shirt over her head, and began biting her on her breast, telling her that they were both going to die. He put a gun to her face and told her the only way to get out of the situation was to kill her and himself. Eventually he calmed down and undid the handcuffs on Aikele so she could sleep. The next morning, she convinced him that she would not call the police if he left, and he did.

Counts 3 (interstate domestic violence) and 4 (brandishing a firearm during the crime of interstate domestic violence alleged in Count 3) were based on a subsequent attack on Aikele four months later. On February 18, 2001 around 3:00 a.m., Dade broke into Aikele's house by smashing a pane of glass, reaching in, and unlocking the door. Dade then entered Aikele's bedroom, grabbed her, and said, "See what you make me do? See what lengths you make me go to see you? I just want to see you." Aikele testified that he was "really angry" and grabbed her by the hair and slapped her in the face. He pulled her clothes off and put a gun to her face. He pushed her to the bed and called her demeaning names and said she was going to "get him off." Aikele testified that he penetrated her with his fingers and performed oral sex on her against her will. He slept in another room of Aikele's house for the rest of the night. The next morning, Aikele asked Dade if she could go to church, and he refused saying that she was going to tell someone about what he had done. He took her clothes off again and penetrated her with his fingers and performed oral sex on her against her will. Aikele was asked why she did not contact the police when Dade was sleeping in the other room. She responded that she "didn't dare" because he was angry that she had him arrested on a prior occasion and had told her "if you ever have me arrested, I'll kill you."

At the close of trial, the district court instructed the jurors that, to find Dade guilty of either count of interstate domestic violence, they would need to find that Dade traveled in interstate commerce to commit, or attempt to commit, a "crime of violence against Teresa Aikele." The district court instructed the jury that, as a matter of law, three Idaho state offenses—assault, battery, and burglary—were crimes of violence. Therefore, it further instructed the jury that the government must prove that Dade committed either Idaho assault, battery, or burglary in connection with the attacks on Aikele, with each member of the jury "agreeing on which of these crimes the defendant committed." The district court then provided the jurors with instructions that outlined the elements of each predicate offense as they applied to Dade's case:

An "assault" under Idaho law is committed when a person:

(1) unlawfully attempts, with apparent ability, to commit a violent injury on the person or another; or

(2) intentionally and unlawfully threatens by word or act to do violence to the person of another, with an apparent ability to do so, and does some act which creates a well-founded fear in the other person that such violence is imminent.

A "battery" under Idaho law is committed when a person:

(1) wilfully [sic] and unlawfully uses force or violence upon the person of another; or

(2) actually, intentionally, and unlawfully touches or strikes another person against the will of the other; or

(3) unlawfully and intentionally causes bodily harm to an individual.

"Burglary" under Idaho law is committed when a person:

(1) enters the residence of another, and

(2) at the time entry is made, that person has the specific intent to commit an assault or battery.

Additionally, the district court instructed the jurors that, to find Dade guilty of violating § 924(c), they would need to find that Dade brandished a firearm during and in relation to the "crime of violence" as charged in Count 3 (interstate domestic violence).

At the conclusion of Dade's trial, the jury convicted Dade of five of the eight counts: threatening interstate communications (Count 1), interstate stalking (Count 2), interstate domestic violence (Counts 3 and 6) (" § 2261"), and use of a firearm in relation to a crime of violence (Count 4) (" § 924(c)"). The jury's verdict did not expressly specify which predicate Idaho offense it relied on to find Dade guilty of the § 2261 and § 924(c) counts. The district court sentenced Dade to an aggregate term of 336 months’ imprisonment to be followed by a 5-year term of supervised release.

Dade appealed and this court affirmed his convictions, but vacated and remanded his sentence in light of United States v. Ameline , 409 F.3d 1073, 1085 (9th Cir. 2005) (en banc). See United States v. Dade , 136 F. App'x 973, 975 (9th Cir. 2005). On remand, the district court imposed the same 336-month aggregate sentence.

In 2009, Dade filed his first 28 U.S.C. § 2255 motion. In 2011, the district court dismissed Dade's § 2255 motion on the merits and denied a certificate of appealability. See United States v. Dade , Nos. 4:09-cv-00512-BLW & 4:01-cr-00196-BLW, 2011 WL 6301123, at *15–16 (D. Idaho Dec. 16, 2011).

In 2015, the Supreme Court in Johnson v. United States ("Johnson II "), 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), held that the residual clause of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2)(B) was unconstitutionally vague because it left "grave uncertainty" about both "how to estimate the risk posed by a crime" and "how much risk it takes for a crime to qualify as a violent felony."² Johnson II , 576 U.S. at 597–98, 135 S.Ct. 2551. Three years later, in Sessions v. Dimaya , ––– U.S. ––––, 138 S. Ct. 1204, 200 L.Ed.2d 549 (2018), the Supreme Court extended its reasoning in Johnson II to the definition of "crime of violence" found in 18 U.S.C. § 16(b). Dimaya , 138 S. Ct. at 1216. The Court concluded that § 16(b) is unconstitutionally vague because it creates "more unpredictability and arbitrariness than the Due Process Clause tolerates." Id. (quoting Johnson II , 576 U.S. at 598, 135 S.Ct. 2551 ).

Following the Court's decision in Johnson II , Dade sought authorization from this court to file a second or successive § 2255 motion in the district court. This court granted authorization, and Dade filed the § 2255 motion giving rise to the instant appeal. In the motion, he challenged his § 2261 convictions, asserting that they must be vacated because the offenses that served as the predicate crimes of violence—Idaho burglary, battery, and assault—no longer qualify as categorical crimes of violence under Johnson II and Dimaya .³ Specifically, he argued that Idaho burglary is a crime of violence only under 18 U.S.C. § 16(b), which was facially invalidated in Dimaya , 138 S. Ct. at 1216. Because the jury had not specified which of the three Idaho offenses it had relied on in reaching its verdict, Dade argued that the § 2261 convictions could have relied on an invalid burglary predicate and that therefore his convictions were unlawful under Dimaya . Dade also challenged his § 924(c) conviction, asserting that the § 924(c) conviction must also be vacated...