United States v. Howard

ORDER

Gloria M. Navarro, District Judge.

Pending before the Court are Petitioner Abdul Howard's (“Petitioner's”) Motions to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255, (ECF Nos. 337, 363, 368). The Government filed Responses, (ECF Nos. 351, 365, 371), and Petitioner filed Replies, (ECF Nos. 359, 366, 374).^[1] For the reasons discussed below, the Court DENIES Petitioner's Motions.

I. BACKGROUND

On June 5, 2014, a jury found Petitioner guilty on Counts 1-27 of the Superseding Indictment: 14 counts of Interference with Commerce by Robbery (Hobbs Act Robbery) in violation of 18 U.S.C. § 1951; 12 counts of Possession of a Firearm During, in Relation to, and in Furtherance of a Crime of Violence in violation of 18 U.S.C. § 924(c)(1)(A); and one count of Felon in Possession of a Firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (See

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Mins. Proceedings, ECF No. 187); (J., ECF No. 252). On January 8, 2015, Petitioner was sentenced to 15 years custody as to Count 25 (Felon in Possession of a Firearm), to run concurrently to all other counts; 240 months custody as to Count 27 (Hobbs Act Robbery), to run concurrently to all other counts; life imprisonment as to Counts 1, 3, 5, 7, 9, 11, 13, 15, 17, 19, 21, 23, and 26 (Hobbs Act Robbery), to run concurrently to all other counts; and life imprisonment as to Counts 2, 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, and 24 (Possession of a Firearm During, in Relation to, and in Furtherance of a Crime of Violence), to run consecutively to all other counts. (J., ECF No. 252).

In June 2019, the Supreme Court issued its decision in United States v. Davis, which considered the constitutionality of 18 U.S.C. § 924(c). 139 S.Ct. 2319 (2019). Section 924(c) generally prohibits the use or carrying of a firearm in relation to a “crime of violence, ” and it imposes mandatory minimum sentences that must run consecutive to any other sentence. The statute defines a “crime of violence” as:

An offense that is a felony and (A) has an element the use attempted use, or threatened use of physical force against the person or property of another, or (B) 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. § 924(c)(3). “Courts generally refer to the ‘(A)' clause of section 924(c)(3) as the ‘force clause' and to the ‘(B)' clause of section 924(c)(3) as the ‘residual clause.'” United States v. Bell, 158 F.Supp.3d 906, 910 (N.D. Cal. Jan. 28, 2016). In Davis, the Supreme Court struck down the residual clause as unconstitutionally vague. 139 S.Ct. at 2335-36 (2019).

Also in June 2019, the Supreme Court issued its decision in Rehaif v. United States, which overruled longstanding Ninth Circuit precedent regarding the mens rea element under 18 U.S.C. §§ 922(g) and 924(a)(2). Rehaif, 139 S.Ct. 2191, 2200 (2019). Now, in a prosecution under 18 U.S.C. §§ 922(g) and 924(a)(2), the Government must prove not only that “the

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defendant knew that he possessed a firearm, [but also] that he knew he belonged to the relevant category of persons barred from possessing a firearm.” Id.

II. LEGAL STANDARD

Under 28 U.S.C. § 2255, a petitioner may file a motion requesting the sentencing Court to vacate, set aside, or correct his sentence. 28 U.S.C. § 2255(a). Such a motion may be brought on the following grounds: “(1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack.” Id.; see United States v. Berry, 624 F.3d 1031, 1038 (9th Cir. 2010). “[A] district court may deny a Section 2255 motion without an evidentiary hearing only if the movant's allegations, viewed against the record, either do not state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal.” United States v. Burrows, 872 F.2d 915, 917 (9th Cir. 1989).

III. DISCUSSION

The present Motion challenges the validity of Petitioner's convictions for: (1) Possession of a Firearm During, in Relation to, and in Furtherance of a Crime of Violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii) in light of Davis; and (2) Felon in Possession of a Firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), in light of Rehaif. (Am. Mot. Vacate 3:6-26, ECF No. 368). Additionally, Petitioner claims that his trial and appellate counsel were ineffective. (Id. 4:13-20). The Court will address each claim in turn.

A. Davis Claim

Petitioner claims that the Davis decision affects his convictions in two ways. First, Petitioner asserts that, in light of Davis, his § 924(c) conviction for Possession of a Firearm During, in Relation to, and in Furtherance of a Crime of Violence should be vacated because Hobbs Act Robbery is not a crime of violence. (Am. Mot. Vacate 8:20-22, ECF No. 368).

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Second, Petitioner argues that his life sentence enhancements under 18 U.S.C. § 3559(c)(1) should be vacated because § 3559(c)(1) contains nearly identical language to the unconstitutional residual clause in Davis. (Id. 14:10-17:23). The Court will first address Petitioner's claims concerning his § 924(c) convictions, before turning to Petitioner's § 3559(c)(1) arguments.

1. Petitioner's § 924(c) Convictions

Petitioner explains that the underlying crime of violence for his § 924(c) convictions is Hobbs Act Robbery, which qualified as a crime of violence under the now unconstitutional residual clause. (Id. 8:20-10:2). Petitioner also argues that Hobbs Act Robbery does not qualify as a crime of violence under § 924(c)'s remaining force clause. As such, Petitioner claims that Hobbs Act Robbery cannot be a crime of violence, and thus, he did not commit the crime of violence necessary to sustain a § 924(c) conviction. (Id. 10:3-14:9).

However, the Ninth Circuit has unequivocally held that Hobbs Act Robbery constitutes a crime of violence under § 924(c)'s force clause. United States v. Dominguez, 954 F.3d 1251, 1255, 1262 (9th Cir. 2020) (“Hobbs Act Robbery is a crime of violence under 18 U.S.C. § 924(c)(3)(A) . . . because it's a felony that ‘has an element the use, attempted use, or threatened use of physical force against the person or property of another.'”); United States v. Mendez, 992 F.2d 1488, 1491 (9th Cir. 1993) (“Robbery indisputably qualifies as a crime of violence.”).^[2]Since Hobbs Act Robbery is a crime of violence, Petitioner's § 924(c) conviction for Possession of a Firearm During, in Relation to, and in Furtherance of a Crime of Violence is proper. Accordingly, the Court denies Petitioner's Motion as to this claim.

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2. Petitioner's Sentence Under § 3559(c)(1)

Under 18 U.S.C. § 3559(c)(1), or the “federal three-strikes law, ” a defendant convicted of a serious violent felony receives a sentence enhancement of mandatory life imprisonment when the defendant was previously convicted of at least two other serious violent felonies, either at the state or federal level. Morrison v. United States, No. 95-cr-0708-DMS, 2019 WL 2472520, at *3 (S.D. Cal. June 12, 2019) (citing United States v. Kaluna, 192 F.3d 1188, 1195 (9th Cir. 1999)). A serious violent felony is:

(i) a Federal or State offense, by whatever designation and wherever committed, consisting of . . . aggravated sexual abuse and sexual abuse (as described in sections 2241 and 2242) . . . 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)(i)-(ii). Generally, courts refer to clause (i) as the “enumerated offense” clause. See, e.g., United States v. Raboy, No.CR-09-00678-PHX-JAT, 2019 WL7877155, at *3 (D. Ariz. Dec. 20, 2019). The first part of clause (ii), establishing that an offense “that has an element the use, attempted use, or threatened use of physical force” is a serious violent felony, is referred to as the “force/elements clause.” (Id.). Finally, the second part of clause (ii), establishing that an offense that “by its nature, involves a substantial risk that physical force against the person of another may be used” is a serious violent felony, is referred to as the “residual clause.” (Id.).

In the present Motion, Petitioner explains that he received a mandatory life sentence under the federal three-strikes law because he was convicted of an allegedly serious violent felony, Hobbs Act Robbery, and had at least three prior allegedly serious violent felony

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convictions: (1) second degree robbery under New York state law; (2) sexually motivated coercion under Nevada state law; and (3) robbery with use of a deadly weapon under Nevada state law. (Am. Mot. Vacate 16:11-18, ECF No. 368). However, Petitioner argues that § 3559(c)(2)(F)(ii)'s residual clause has almost identical language to the residual clause in Davis, and thus, should also be struck down as unconstitutionally vague. (Id. 15:20-16:10). Because his prior offenses cannot be serious violent felonies under an unconstitutional residual clause, Petitioner argues that the Government cannot establish that he was previously convicted of at least two serious violent felonies, as required for the § 3559(c)(1) sentence enhancement to apply and asks the Court to vacate his life...