Opinion
CV-16-0501-PHX-FJM (JFM) CR-08-1218-PHX-FJM
03-02-2017
Robert Lee Mays, Movant/Defendant v. United States of America, Respondent/Plaintiff.
Report & Recommendation on Motion to Vacate, Set Aside or Correct Sentence
I. MATTER UNDER CONSIDERATION
Movant, following his conviction in the United States District Court for the District of Arizona, filed an Amended Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 on April 21, 2016 (Doc. 5). On October 7, 2016, Respondent filed its Response (Doc. 7). Movant filed a Reply on November 8, 2016 (Doc. 9).
The Movant's Motion is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 10, Rules Governing Section 2255 Cases , Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND
A. FACTUAL BACKGROUND AND PROCEEDINGS AT TRIAL
Movant was indicted on October 15, 2008 on one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a) and (e), and related forfeiture allegations. (CR Doc. 6) (Filings in the underlying criminal case, CR-08-1218-PHX-FJM, are referenced herein as "CR Doc. ___.") The Indictment alleged prior felony convictions.
Movant eventually entered into a written Plea Agreement (CR Doc. 30) wherein he agreed to plead guilty to the indictment with a stipulated sentence of 15 years in prison, and entered a plea of guilty on February 5, 2009. (CR Doc. 23, M.E. 2/5/9.) On May 4, 2009, Movant was sentenced to 180 months in prison. (CR Doc. 28, M.E. 5/4/9; CR Doc. 29, Judgment.) On May 7, 2009, an Amended Judgment (CR Doc. 31) was filed to correct an error in the listing of statutes.
Movant did not file a direct appeal. B. PRESENT FEDERAL HABEAS PROCEEDINGS
Motion - Movant commenced this case by filing his original Motion to Vacate, Set Aside, or Correct Sentence (Doc. 1) on February 22, 2016. Counsel was appointed, and Movant was granted leave to file an amended motion. (Order 4/14/16, Doc. 3.)
On April 21, 2016, Movant filed his Amended Motion to Vacate, Set Aside, or Correct Sentence (Doc. 5). Movant's Amended Motion asserts a single ground for relief, i.e. that in Johnson v. United States, 135 S. Ct. 2551 (2015), the Supreme Court held that the ACCA's residual clause is unconstitutionally vague, and in light of Johnson, Movant no longer has three qualifying prior convictions under the ACCA.
Response - On October 7, 2016, Respondent filed its Response (Doc. 7), arguing that even after Johnson six of Movant's prior convictions qualify under the elements (or force) clause of 18 U.S.C. § 924(e)(2)(B)(i) and U.S.S.G. § 4B1.2(a)(1) as "violent felonies." These include: (1) two separate armed robberies convictions; (2) one aggravated robbery and one attempted robbery conviction; (3) one robbery conviction; and (4) and one aggravated assault conviction Respondent attaches various records relating to the six convictions.
Reply - November 8, 2016, Movant filed a Reply (Doc. 9). Movant argues that: (1) his Arizona armed robbery does not qualify because it does not require the use of violent force; (2) his Arizona aggravated robbery does not qualify for the same reason; (3) his Arizona armed robbery does not qualify because it extends to mere possession of a weapon; (4) his Arizona aggravated assault does not qualify because it may be committed recklessly; and (5) Respondent has effectively conceded by failing to argue to the contrary that his Arizona burglary and hindering prosecution convictions do not qualify.
Movant also argues that Respondent has waived defenses of waiver and procedural default by failing to raise the defenses in the Response. (Reply, Doc. 9 at 2-3.) Because neither Respondents nor the undersigned rely upon such defenses to dispose of Movant's Motion, these defenses and the effectiveness of their waiver is not addressed.
III. APPLICATION OF LAW TO FACTS
A. LEGAL BACKGROUND: ACCA AND JOHNSON 1. The Armed Career Criminal Act
The Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 922(g), et seq, forbids certain people from shipping, receiving, or possessing firearms, and, in general, punishes violators with imprisonment for up to 10 years. 18 U.S.C. § 924(a)(2). However, if the offender has three or more prior convictions for a "serious drug offense" or "violent felony," the ACCA increases the prison term to a mandatory minimum 15-year sentence and a maximum term of life imprisonment.
In relevant part, the ACCA defines "violent felony" as follows:
"any crime punishable by imprisonment for a term exceeding one year . . . that —18 U.S.C. § 924(e)(2)(B) (emphasis added). Subsection (i) has become known as the "force clause" (or sometimes the "elements clause"). Compare Welch v. United States, 136 S. Ct. 1257, 1261 (2016) ("[s]ubsection (i) of this definition is known as the elements clause"), with United States v. Parnell, 818 F.3d 974, 977 (9th Cir. 2016) ("§ 924(e)(2)(B)(i), known as the force clause"). The emphasized portion subsection (ii) of the definition has become known as the "residual clause." The remainder has become known as the "enumerated offenses clause." 2. Johnson and the Residual Clause
(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 the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another."
Movant references the "enumerated offenses clause" as the "elements clause" in his Motion to Vacate. (See Motion to Vacate, Doc. 13 at 3 ¶ 19.)
Residual Clause Invalid - On June 26, 2015, the Supreme Court held that the "residual clause" in 18 U.S.C. § 924(e)(2)(B)(ii) is unconstitutionally vague, and struck it down as a violation of the due process clause of the Fifth Amendment. Johnson v. United States, 576 U.S. ___, 135 S.Ct. 2551 (2015). However, the Johnson holding was expressly confined to the residual clause, and the Court was careful to point out that its decision "does not call into question application of the [ACCA] to the four enumerated offenses, or the remainder of the [ACCA's] definition of a violent felony." Id. at 2563. Thus, Johnson does not affect the constitutionality of sentencing enhancements premised on § 924(e)(2)(B)(i) (the "force clause") or the first portion of § 924(e)(2)(B)(ii) (the "enumerated offenses clause").
In addition, several other statutory sentencing schemes incorporate residual clause language, including the mandatory consecutive sentence required by 18 U.S.C. § 924(c). There is a current split among federal courts on whether, and to what extent, Johnson and Welch apply to other federal statutes. Compare, e.g., United States v. Taylor, 814 F.3d 340, 375-76 (6th Cir. 2016) (holding "crime of violence" language in 18 U.S.C. § 924(c)(3) is not unconstitutionally vague because § 924(c)(3)(B) is "considerably narrower than the statute invalidated by the Court in Johnson and because much of Johnson's analysis does not apply to § 924(c)(3)(B)"); with Dimaya v. Lynch, 803 F.3d 1110, 1120 (9th Cir. 2015) (applying Johnson to the "crime of violence" language found in 18 U.S.C. § 16(b)).
Johnson Retroactive - The Supreme Court subsequently determined, in Welch v. United States, ___ U.S. ___, 136 S.Ct. 1257, 1268 (2016), that Johnson stated a "substantive rule that has retroactive effect in cases on collateral review." Accordingly, as a general matter for § 2255 purposes, a § 2255 motion based on Johnson is timely if it was filed on or before June 26, 2016, one year from the date on which Johnson was decided. See 28 U.S.C. §2255(f)(3) (one year statute of limitations for § 2255 motions begins to run from the "date on which the right asserted was initially recognized by the Supreme Court"); Orona v. United States, 826 F.3d 1196, 1198 (9th Cir. 2016) (date on which Supreme Court recognized new right under Johnson is June 26, 2015).
Effect on Movant's Sentence - In light of Johnson, Movant's prior convictions cannot qualify as violent felonies, unless they do so under the force clause or the enumerated offenses clause of § 924(e)(2)(B)(i). 3. The Enumerated Offenses Clause , Descamps , and Burglary
The Enumerated Offenses Clause - The enumerated offenses clauses provides that four specific types of offenses qualify as predicate offenses under the ACCA: "burglary, arson, or extortion, [or] involves the use of explosives." 18 U.S.C. § 924(e)(2)(B)(ii). In determining whether a conviction qualifies as one of these enumerated offenses, "Congress intended that the enhancement provision be triggered by crimes having certain specified elements, not by crimes that happened to be labeled 'robbery' or 'burglary' by the laws of the State of conviction. Taylor v. United States, 495 U.S. 575, 588-89 (1990). Thus, to make the required comparison of elements, the courts utilize either a "categorical approach," or a "modified categorical approach."
To determine whether a past conviction is for one of those crimes, courts use what has become known as the "categorical approach": They compare the elements of the statute forming the basis of the defendant's conviction with the elements of the "generic" crime—i.e., the offense as commonly understood. The prior conviction qualifies as an ACCA predicate only if the statute's elements are the same as, or narrower than, those of the generic offense.Descamps v. United States, 133 S. Ct. 2276, 2281 (2013). Thus, a conviction qualifies either if its elements are directly comparable (the "categorical approach") or if one of the divisible alternatives is comparable, and specific portions of the record show that was the version for which the defendant was convicted (the "modified categorical approach"). "If the state statute is narrower than the generic view...there is no problem, because the conviction necessarily implies that the defendant has been found guilty of all the elements of [the generic offense]." Taylor, 495 U.S. at 599.
We have previously approved a variant of this method—labeled (not very inventively) the "modified categorical approach"—when a prior conviction is for violating a so-called "divisible statute." That kind of statute sets out one or more elements of the offense in the alternative—for example, stating that burglary involves entry into a building or an automobile. If one alternative (say, a building) matches an element in the generic offense, but the other (say, an automobile) does not, the modified categorical approach permits sentencing courts to consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant's prior conviction. The court can then do what the categorical approach demands: compare the elements of the crime of conviction (including the alternative element used in the case) with the elements of the generic crime.
In utilizing the "modified categorical approach," the courts are not concerned with identifying and comparing specific facts of the offense, only in identifying which version of the offense the defendant was convicted under. The purpose is "a focus on the elements, rather than the facts, of a crime." Descamps, 133 S. Ct. at 2285. In discussing why it had adopted an elements focused approach, the Supreme Court has identified three reasons:
First, it comports with ACCA's text and history. Second, it avoids the Sixth Amendment concerns that would arise from sentencing courts' making findings of fact that properly belong to juries. And third, it averts "the practical difficulties and potential unfairness of a factual approach."Id. at 2287.
Indivisible Statutes - In Descamps, the Supreme Court held that "sentencing courts may not apply the modified categorical approach when the crime of which the defendant was convicted has a single, indivisible set of elements," 133 S.Ct. at 2282, "i.e., one not containing alternative elements—that criminalizes a broader swath of conduct than the relevant generic offense," id. at 2281. Thus, the Court specifically rejected an approach which would allow reference to the record regarding an indivisible statute, concluding that it "turns an elements-based inquiry into an evidence-based one. It asks not whether 'statutory definitions' necessarily require an adjudicator to find the generic offense, but instead whether the prosecutor's case realistically led the adjudicator to make that determination." Id. at 2287. B. ROBBERY OFFENSES
Movant argues that his convictions for burglary (Amend. Mot. Doc. 5 at 3-4), hindering prosecution (id. at 4-6), robbery (id. at 6-7), aggravated assault (id. at 7-8), and possession of narcotics (id. at 8) do not qualify as predicate offenses under the ACCA.
Respondent only argues that the robbery and assault offenses qualify. Accordingly, the undersigned addresses only those offenses.
With regard to the robbery offenses, Movant argues that no form of robbery in Arizona qualifies as a violent felony under the ACCA. 1. Simple Robbery
On July 1, 1981, Movant was convicted in Maricopa County Superior Court on one count of robbery, in violation of Ariz. Rev. Stat. §§ 13-901 and 13-1902, and was sentenced to 5 years in prison. (Attachment C, Sentence 7/1/81.)
Movant argues that while Ariz. Rev. Stat. § 13-1902 requires threatening or using "force," § 13-1901(1) defines "force" as "any physical act directed against a person as a means of gaining control of property." Movant argues that is not sufficient to constitute a "violent felony" under the ACCA because it requires "force capable of causing physical pain or injury to another person". (Amended Motion, Doc. 5 at 6-7.)
Respondent argues that Arizona law makes clear that the force required must be "of such a nature as to show that it was intended to overpower the party robbed," and that is sufficient. (Response, Doc. 7 at 12 (citing State v. Bishop, 698 P.2d 1240, 1243 (Ariz. 1985); and State v. Lear, 6 P.2d 426, 427 (Ariz. 1931)).)
Movant replies that violent force is not required because "Arizona law is clear that no particular amount of force is required to accomplish the crime of robbery." (Reply, Doc. 9 at 3 (citing State v. Stephens, 186 P.2d 346, 350 (Ariz. 1947)).)
Degree of Required Physical Force Under ACCA - In Johnson v. United States, 559 U.S. 133 (2010) (herein "Johnson 2010"), the Court wrestled to define the level of physical force required to qualify a conviction under 18 U.S.C. § 924(e)(2)(B)(i), in the face of a Florida conviction that only required proof of "the slightest unwanted physical touch." Id. at 137. The Court concluded: "We think it clear that in the context of a statutory definition of 'violent felony,' the phrase 'physical force' means violent force—that is, force capable of causing physical pain or injury to another person." Id. at 140.
The Ninth Circuit continues to apply that definition to not only the ACCA, but to the Sentencing Guidelines as well. See United States v. Parnell, 818 F.3d 974, 979 (9th Cir. 2016) ("requirement of physical force under § 924(e)(2)(B)(i)—'force capable of causing physical pain or injury to another person.'"); and United States v. Acevedo-De La Cruz, 844 F.3d 1147, 1149 (9th Cir. 2017) ("'Physical force' for purposes of the Sentencing Guidelines means 'force capable of causing physical pain or injury to another person.'"). --------
The parties point to no authority resolving whether an Arizona simple robbery requires the use of such physical force.
Force for Arizona Simple Robbery - Respondent argues that an Arizona simple robbery does require the use of such physical force, and cites State v. Bishop, 144 Ariz. 521, 524, 698 P.2d 1240, 1243 (1985). In Bishop, the Arizona Supreme Court opined that an Arizona robbery requires force "of such a nature as to show that it was intended to overpower the party robbed." Id. at 524, 698 P.3d at 1243 (citing Lear v. State, 39 Ariz. 313, 315, 6 P.2d 426, 427 (1931)). More recently, the Arizona Supreme Court has opined: "Once force or a threat of imminent physical injury sufficient to overpower the party robbed is used, the crime becomes simple robbery." State v. Garza Rodriguez, 164 Ariz. 107, 111, 791 P.2d 633, 637 (1990).
Movant counters that "no particular amount of force is required to accomplish the crime of robbery," citing State v. Stephens, 186 P.2d 346, 350 (Ariz. 1947). (Reply, Doc. 9 at 3.) However, Stephens does not open the door so wide. Rather, Stephens considered whether intimidation, without actual use of force, was sufficient to establish a robbery, and concluded that it was sufficient to engender "fear through threats when supplemented by force, actual or constructive." Stephens, 66 Ariz. at 226, 186 P.2d at 350 (citing Brown v. State, 34 Ariz. 150, 268 P. 618 (1928)). The Stephens court went on to reference authorities requiring that the fear be of "bodily injury', id. (quoting 54 C.J., p. 1021, sec. 36), or sufficient to "induce a man to part with his property for the sake of his person," id. (quoting 46 Am.Jur., Robbery, sec. 16). In short, Stephens required the threatened use of physical force be sufficient to cause physical pain or injury, far more than the unwanted touching at issue in Johnson 2010.
Movant draws a comparison to the statutes at issue in United States v. Parnell, 818 F.3d 974, 982 (9th Cir. 2016). In Parnell, the defendant had been sentenced as an armed career criminal under the ACCA based in part on a conviction for armed robbery under Massachusetts law. The Ninth Circuit found that the prior did not meet the physical force requirement of § 924(e)(2)(B)(i), because the degree of force was immaterial under the Massachusetts statute. Under the Massachusetts statute, "the degree of force is immaterial so long as it is sufficient to obtain the victim's property 'against his will.'" Parnell, 818 F.3d at 978 (quoting Commonwealth v. Jones, 362 Mass. 83, 283 N.E.2d 840, 843 (1972)). However, as recognized in Bishop and Stephens, the degree of force necessary under the Arizona statute must be sufficient to not only coerce the victim, but must also create a fear of bodily injury. Tellingly, the Parnell court recognized that in Jones, the Massachusetts court concluded that despite the rule in most jurisdictions, theft by snatching was sufficient to constitute robbery. In contrast, in Lear, relied upon in Bishop, the Arizona Supreme Court concluded that snatching did not constitute robbery under the Arizona statutes.
The element of fear is not in the case. Appellant made no threat or demonstration. He simply grabbed the bag of silver from the hands of the prosecuting witness and ran away with it. There was no pulling or scrambling for possession of the bag. Was the force employed by appellant the kind of force necessary to constitute robbery? We think not. As we read the cases and text-writers, 'the force used must be either before, or at the time of the taking, and must be of such a nature as to show that it was intended to overpower the party robbed, and prevent his resisting, and not merely to get possession of the property stolen.'Lear, 39 Ariz. at 315, 6 P.2d at 427. Accordingly, unlike the Massachusetts statute in Parnell, the Arizona robbery statute has as an element the requisite physical force "capable of causing physical pain or injury to another person." Johnson 2010, 559 U.S. at 140.
Conclusion - Based on the foregoing, it is clear that an Arizona simple robbery requires evidence of physical force capable of causing physical pain or injury. Accordingly, Movant's 1981 simple robbery conviction qualifies under the force clause of the ACCA and under the Sentencing Guidelines. 2. Aggravated Robbery
Also on July 1, 1981, Movant was convicted and sentenced in Maricopa County Superior Court on one count of aggravated robbery in violation of Ariz. Rev. Stat. § 13-1901, 13-1902 and 13-1903, and one count of attempted aggravated robbery. (Attachment B, Sentence 7/1/81.) Under A.R.S. 13-1903, "[a] person commits aggravated robbery if in the course of committing robbery as defined in section 13-1902, such person is aided by one or more accomplices actually present."
Because the offense of robbery is an element of aggravated robbery, and simple robbery qualifies, aggravated robbery and attempted aggravated robbery qualify as well. See 18 U.S.C. § 924(e)(2)(B)(i) ("use, attempted use, or threatened use of physical force"); and Taylor, 529 F.3d at 1237-1238 (Arizona's attempt statute is coextensive with federal definition and thus constitutes a crime of violence under career sentencing guidelines). 3. Armed Robbery
Again on July 1, 1981, Movant was convicted and sentenced in Maricopa County Superior Court on two counts of armed robbery in violation of Ariz. Rev. Stat. §§ 13-1901, 13-1902, and 13-1904. Respondent argues that under Taylor, Arizona's armed robbery statute has been determined to be categorically a crime of violence under the Sentencing Guidelines, and thus qualifies under the ACCA. (Response, Doc. 7 at 8-9.)
Movant argues that Taylor was implicitly overruled by Johnson 2010, and relies upon his contention that under Johnson 2010 simple robbery is not a violent felony because it does not have as an element the requisite physical force, and that the additional element of being armed does not require the use of the weapon, only the possession of it. (Reply, Doc. 9 at 4 (citing Garza Rodriguez).)
Indeed, the Arizona Supreme Court has held:
The A.R.S. § 13-1904(A)(1) elements of "armed with a deadly weapon" or "armed with a simulated weapon" are satisfied if the State establishes that such an instrument was within the immediate possession or available for use of the accused. See State v. Barnett, 111 Ariz. 391, 393, 531 P.2d 148, 150 (1975). Both elements reflect the policy that the greater punishment is reserved to deter the dangerous person actually capable of inflicting death or serious bodily harm or intending to create a life endangering environment by carrying a deadly or simulated deadly weapon. See Gerber, supra, at 275 (armed robbery classified as the most severe because the presence of a weapon reflects "a premeditated readiness for violence and possible injury or death"). The weapon, therefore, need not be displayed by the accused nor seen by the victim to satisfy these elements of the armed robbery statute.Garza Rodriguez, 164 Ariz. 107, 111, 791 P.2d 633, 637 (1990). Thus, the Arizona statute may be satisfied if the defendant merely possesses a weapon at the time of the offense. In Parnell, the Ninth Circuit concluded that the Massachusetts armed robbery statute did not constitute a violent felony because, in part, the armed component similarly required mere possession of the weapon.
There is a material difference between the presence of a weapon, which produces a risk of violent force, and the actual or threatened use of such force. Only the latter falls within ACCA's force clause.Parnell, 818 F.3d at 980.
Nonetheless, as discussed hereinabove, the underlying simple robbery supplies the requisite physical force, even under Johnson 2010, and thus the armed robbery convictions qualify under the force clause. C. AGGRAVATED ASSAULT OFFENSE
Finally, Respondents rely on Movant's February 11, 1993 conviction and sentence to five years imprisonment in Maricopa County Superior Court on a charge of aggravated assault in violation of Ariz. Rev. Stat. §§ 13-1204(A)(2) and (B), and 13-1203(A)(1).
Movant concedes that Arizona's aggravated assault statute is divisible within the meaning of Descamps, citing United States v. Sahagun-Gallegos, 782 F.3d 1094, 1098-99 (9th Cir. 2015), but argues that the supplied record does not contain documents sufficient to know whether Movant was convicted of the version of aggravated assault that would qualify as a violent felony. (Amended Motion, Doc. 5 at 7-8.)
Respondent argues that the necessary records are provided with the Response, indicate that Movant was convicted of violating subsection 13-1204(A)(2) and (B), and that such an offense has been found to constitute a "crime of violence" under 18 U.S.C. § 16. (Response, Doc. 7 at 14 (citing United States v. Cabrera-Perez, 751 F.3d 1000 (9th Cir. 2014).)
Movant replies that even if an aggravated assault under Ariz. Rev. Stat. § 13-1204(a)(2) qualifies, the record is insufficient to show a qualifying offense under that provision because it also reflects that the conviction was under § 13-1203(A)(1).
In Sahagun-Gallegos, the parties had agreed that an offense under § 13-1203(A)(1) would not qualify as a "crime of violence" "because the definition of 'assault' in subsection (1) encompasses acts done with ordinary recklessness, whereas a 'crime of violence' requires a mens rea of at least heightened recklessness." 782 F.3d at 1098. In reference to that contention, the court referenced United States v. Cabrera-Perez, 751 F.3d 1000, 1005 (9th Cir. 2014). In Cabrera-Perez, the Ninth Circuit opined that "a 'crime of violence' under 18 U.S.C. § 16 requires a mens rea of at least extreme recklessness," and cited Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1130 (9th Cir.2006). In another case based on Johnson, the undersigned has concluded in a pending Report & Recommendation that Fernandez-Ruiz and its progeny have been effectively overruled by the recent decision in Voisine v. United States, 136 S. Ct. 2272 (2016). See Orona v. United States, CV-16-2160-PHX-SRB(JFM), Report & Recommendation, Doc. 19 at 13-15.
However, Respondent has not relied upon Voisine in this case, and Movant has not had an opportunity to be heard on it. Because the undersigned ultimately concludes that Respondent has established the requisite three prior violent felonies without relying on the instant offense, the undersigned does not resolve whether, in light of Voisine, Movant's aggravated assault conviction categorically qualifies as a crime of violence under the force clause, even if based on a reckless offense. D. SEPARATE OFFENSES
Respondent argues that despite their having been prosecuted in the same proceedings, each of Movant's qualifying prior convictions count as separate convictions for purposes of 18 U.S.C. § 924(e)(2).
The enhanced sentencing of § 924(e) only applies to those with "three previous convictions" for a qualifying offense "committed on occasions different than one another." 18 U.S.C. § 924(e)(2)(1). "The rule [is that] offenses that are temporally distinct constitute separate predicate offenses, even if committed within hours of each other, similar in nature, and consolidated for trial or sentencing." United States v. Maxey, 989 F.2d 303, 306 (9th Cir.1993). The Court has found separate convictions where the offenses occurred at different times, in different locations, and involved different victims. United States v. Antonie, 953 F.2d 496, 499 (9th Cir.1991). In United States v. Wicks, 833 F.2d 192, 194 (9th Cir.1987) (reviewing former version of ACCA), the Ninth Circuit held that two burglaries, committed on the same night at different locations, were "distinct in time" and therefore separate predicate offenses. The Court noted the important difference "between convictions for simultaneous robberies and convictions for robberies distinct in time." 833 F.2d at 194.
Here, although prosecuted simultaneously, Movant's convictions were almost all committed on different occasions.
Simple Robbery - Movant's simple robbery conviction was committed on October 21, 1980. (Attachment C, Sentence in CR-118305, 7/1/81.) No other conviction arose out of an offense on the same day.
Aggravated Robberies - Movant's aggravated robbery convictions were both committed on November 3, 1980. (Attachment B, Sentence in CR-118437, 7/1/81.) However, the Complaint reflects that the aggravated robbery count was based on a robbery of the victim FL, and the attempted aggravated robbery count was based on an attempt to rob the victim MW.
Respondent argues that the events occurred at different locations, Movant having left one store and proceeded to another down the street. (Response, Doc. 7 at 12-13.) In support, Respondent references the Presentence Report and Attachment B to the Response. (Id.) However, Respondent offers nothing to suggest that a Presentence Report is sufficient evidence of the facts of a prior conviction to determine qualification under the ACCA. In Shepard v. United States, 544 U.S. 13 (2005), the Court directed that determinations for purposes of applying the ACCA be made by looking to the "terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information." Id. at 26. Respondent offers nothing to suggest that the referenced Presentence Report rises to that level of judicial record.
The supplied records show no separation between the two offenses other than the different violation and the different victims. There is nothing in the supplied records to suggest that the offenses occurred sequentially, rather than simultaneously, or in different locations.
While it might be tempting to imply separate offenses from the completion of the one, and the mere attempt of the other, Respondent offers nothing to show that a simultaneous robbery of two victims, one successful, one unsuccessful, could not be prosecuted that way.
Accordingly, based on the record before the Court, these aggravated robberies must be treated as a single conviction.
Armed Robberies - In contrast, the Indictment in Movant's armed robbery convictions shows an armed robbery of the victim JO on February 22, 1981, and an armed robbery of the victim CK on February 24, 1981. (Attachment A, Indictment in CR-110871.) Given the lapse of time between the offenses and disparate victims, that is sufficient to find two separate prior convictions. E. CONCLUSION
Based on the foregoing, Respondent has shown that Movant was convicted of the following separate, qualifying offenses: (1) a simple robbery on October 21, 1980; (2) a single aggravated robbery on November 3, 1980; (3) an armed robbery on February 22, 1981; and (4) an armed robbery on February 24, 1981. Accordingly, Movant had more than the three necessary prior convictions. Movant providing no other basis to vacate, set aside or correct his sentence, Movant's Motion is without merit and must be denied.
IV. CERTIFICATE OF APPEALABILITY
Ruling Required - Rule 11(a), Rules Governing Section 2255 Cases, requires that in habeas cases the "district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Such certificates are required in cases concerning detention arising "out of process issued by a State court", or in a proceeding under 28 U.S.C. § 2255 attacking a federal criminal judgment or sentence. 28 U.S.C. § 2253(c)(1).
Here, the Motion to Vacate is brought pursuant to 28 U.S.C. § 2255, and challenges Movant's federal criminal judgment or sentence. The recommendations if accepted will result in Movant's Motion being resolved adversely to Movant. Accordingly, a decision on a certificate of appealability is required.
Applicable Standards - The standard for issuing a certificate of appealability ("COA") is whether the applicant has "made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). "When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id.
Standard Not Met - Assuming the recommendations herein are followed in the district court's judgment, that decision will be in part on procedural grounds, and in part on the merits. Under the reasoning set forth herein, jurists of reason would not find it debatable whether the district court was correct in its procedural ruling, and jurists of reason would not find the district court's assessment of the constitutional claims debatable or wrong.
Accordingly, to the extent that the Court adopts this Report & Recommendation as to the Motion to Vacate, a certificate of appealability should be denied.
V. RECOMMENDATION
IT IS THEREFORE RECOMMENDED that Movant's Amended Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, filed April 21, 2016 (Doc. 5) be DENIED.
IT IS FURTHER RECOMMENDED that, to the extent the foregoing findings and recommendations are adopted in the District Court's order, a Certificate of Appealability be DENIED.
VI. EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.
However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See also Rule 10, Rules Governing Section 2255 Proceedings. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007). Dated: March 2, 2017
/s/_________
James F. Metcalf
United States Magistrate Judge 16-0501r RR 17 02 23 on HC.docx