United States v. Hicks

UNITED STATES OF AMERICA, Petitioner, v. STEVEN TROY HICKS, Respondent.

Case No.: 02-CR-0625-3-L

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

September 13, 2018

ORDER:

(1) DENYING MOTION TO VACATE, SET ASIDE, or CORRECT SENTENCE UNDER 28 U.S.C. 2255, and

(2) DENYING CERTIFICATE OF APPEALABILITY

Petitioner, Steven Troy Hicks ("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 and Petitioner replied. 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 Steven Troy Hicks was charged by indictment on March 7, 2002 with one count of conspiracy to distribute cocaine and cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846. (Indictment, Case No. 02-CR-0625 [ECF NO. 1.])

On April 21, 2003, Petitioner pled guilty to Count One of the indictment and entered a plea agreement. (Plea Agreement Case No. 02-CR-0625 [ECF NO. 183.]) At the time he was sentenced, Petitioner's prior California robbery conviction under Penal Code § 211 was deemed a "crime of violence" pursuant to U.S.S.G. § 4B1.1. which resulted in a career offender enhancement to his sentence. On September 4, 2003, Petitioner was sentenced by this Court to a 235 month sentence, five years supervised release, and a special assessment of $100. (Judgment, Case No. 02-CR-0625 [ECF NO. 280.])

On September 9, 2003, Petitioner filed a Notice of Appeal, followed shortly by an Amended Notice of Appeal on September 17, 2003. [Notices, Case No. 02-CR-0625 [ECF NOS. 283, 287.]) The Ninth Circuit dismissed Petitioner's appeal in a memorandum disposition. United States v. Horne, 117 F.App'x 519, 521 (9th Cir. 2004)(unpublished)(dismissing appeal as to Hicks). Petitioner filed his first petition under 28 U.S.C. § 2255 in this Court on November 3, 2005. (Mot. [ECF NO. 421.]) On December 4, 2006, this Court denied the petition. (Order [ECF NO. 224.])

On June 17, 2016, Petitioner filed the current petition in this Court to protect the statute of limitations while he sought permission from the Ninth Circuit to submit a second or successive section 2255. [Motion, Case No. 02-CR-0625-3 [ECF NO. 688.]) Shortly thereafter, on July 27, 2016, Petitioner filed a Motion to Stay the current proceedings while his request to file a second or successive petition was pending. [ECF NO. 700.] The Ninth Circuit granted Petitioner's request to file a second or successive petition on December 22, 2016, noting that Petitioner made a prima facie showing for relief under Johnson v. United States, 135 S.Ct. 2551 (2015). See Hicks v. United States, C.A. No. 16-71529. (9th Cir. Dec. 22, 2016). This Court issued a briefing schedule onPetitioner's Motion and the Government filed a Response in Opposition on April 12, 2017, followed by Petitioner's Reply on May 5, 2017.

II. DISCUSSION

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 argues that his section 211 robbery conviction is no longer considered a "crime of violence" after Johnson. (Mot. at 2). According to Petitioner, 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 "crime of violence" under USSG § 4B1.2(a)(2) and therefore this Court must resentence him without the career offender designation. (Id. at 10.) Because Johnson announced a new rule, Petitioner claims he was unable to raise the claim earlier and therefore it is not time barred or procedurally defaulted. (Reply at 3-4).

The Government objects and contends the Court should dismiss or deny the Petition because: (1) Petitioner procedurally defaulted his career offender enhancement claim when he did not raise it on appeal; (2) Johnson does not apply to his claim therefore it is barred by the statute of limitations; (3) Johnson is not retroactively applicable in either the advisory or mandatory Guidelines context; (4) the mandatory Guidelines are not subject to vagueness challenges after Beckles v. United States, 137S.Ct. 886, 890 (2017); (5) Petitioner's prior conviction under California Penal Code § 211 qualifies as a crime of violence under the enumerated offenses clause and therefore does not implicate the residual clause at issue in Johnson. (Oppo at 5-18).

A. 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 or that he is actually innocent.' " United States v. Braswell, 501 F.3d 1147, 1149 (9th Cir.2007)

1. Cause

Cause can be demonstrated by showing that the procedural default is "due to an objective factor that is external to the petitioner and cannot be fairly attributed to him." Manning v. Foster, 224 F.3d 1129, 1133 (9^th Cir. 2000)(internal quotes omitted). The Supreme Court has excused procedural default on collateral review where (1) the claim was "novel" in a court proceeding, Reed, 468 U.S. at 16, (2) the defendant received ineffective assistance of counsel, Edwards v. Carpenter, 529 U.S. 446, 451 (2000), or (3) the defendant is actually innocent. McQuiggin v. Perkins, 133 S.Ct. 1924, 1932 (2013). A petitioner can demonstrate cause for the failure to pursue a claim if he can show that "the factual or legal basis for a claim was not reasonably available to counsel" at the time of direct appeal. Murray v. Carrier, 477 U.S. 478.

Petitioner argues that he had cause for his failure to raise the claim earlier because the claim is novel and similar attacks on the constitutionality of the residual clause had failed until Johnson, which explicitly overruled precedent and overturned widespread practices, citing Reed v. Ross, 468 U.S. 1, 16 (1984). (Reply 4).

The Government argues that Petitioner cannot demonstrate cause because it was "beyond dispute" that his attorney could have anticipated a challenge to the residual clause on vagueness grounds and raised it on appeal. (Oppo 12). Moreover, Petitionercannot claim his counsel was ineffective for failing to raise the claim because a failure to anticipate a later decision which changes the law is not deficient performance under Strickland v Washington, 466 U.S. 668 (1984). (Id. at 8).

The Court finds that Petitioner's claim is sufficiently novel to demonstrate cause. A petitioner may demonstrate that a claim is novel if it fits into one of three categories identified by the Supreme Court which represent "a clear break with the past." Desist v. United States, 394 U.S. 244, 248 (1969). First, a decision may explicitly overrule one of the Supreme Court's precedents. Reed, 468 U.S. at 17. Second, a decision may "overtur[n] a longstanding and widespread practice to which the Supreme Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved." Id. Finally, "a decision may 'disapprov[e] a practice the Court arguably has sanctioned in prior cases.'" Id.

The Ninth Circuit denied prior Constitutional challenges to the residual clause, holding that the clause was not void for vagueness. James v. United States, 550 U.S. 192, 209 (2007) and Sykes v. United States, 564 U.S. 1, 16 (2011). However, Johnson explicitly overruled James and Sykes, placing Petitioner's claim squarely within the first of Reed's three categories. See Johnson, 135 S.Ct at 2563 ("Our contrary holdings in James and Sykes are overruled.") In addition, the Supreme Court held that Johnson was a "new substantive rule that has retroactive effect in cases on collateral review." Welch, 136 S.Ct. at 1268. Therefore, a vagueness challenge to the residual clause of section 4B1.2 was foreclosed at the time of Petitioner's sentence by Supreme Court precedent. United States v. Savage, 231 F.Supp. 542, 563 (9th Cir. 2017).

In addition, at the time of petitioner's sentencing and during the time within which he would have appealed, there was a longstanding and widespread practice of courts enhancing sentences under § 4B1.2's residual clause which was overturned by Johnson. See e.g. United States v. Park, 649 F.3d 1175, 1177-78 (9th Cir. 2011) (holding California residential burglary to be a "crime of violence" under the residual clause of § 4B1.2); United States v. Spencer, 724 F.3d 1133 (9th Cir. 2013)(holding Hawaii criminalproperty damage in the first degree was "crime of violence" under residual clause of § 4B1.2). Petitioner's claim is novel under either of the first two categories in Reed. Where, as here, retroactive effect is given to a case which falls into one of the first two categories, an attorney will have had no reasonable basis to raise the claim where it would undoubtedly meet defeat, instead "the failure of a defendant's...