Opinion
No. CV 17-18-TUC-JAS (BPV)
01-05-2018
Linzey Smith, Petitioner, v. Felipe Martinez, Warden of FCT-Safford, Respondent.
REPORT AND RECOMMENDATION
Petitioner Linzey Smith, who is currently incarcerated at the FCI-Safford, Arizona, has filed through counsel a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 challenging his sentence imposed by the United States District Court for the Eastern District of Washington. (Doc. 1); see also Federal Bureau of Prisons inmate locator, https://www.bop.gov/inmateloc/ (last checked on January 5, 2018). Respondent has filed a Response to Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 (Doc. 12) and Petitioner has filed a Reply (Doc. 31). Petitioner has also filed a Motion for Release During Pendency of Habeas Proceedings (Doc. 34), which Respondent opposes (see Doc. 35). For the following reasons, the Magistrate Judge recommends that the District Court, after its independent review, grant Petitioner's § 2241 Petition and deny Petitioner's Motion for Release During Pendency of Habeas Proceeding.
I. Introduction
As set forth more fully below, Petitioner was sentenced in 2005 under the Armed Career Criminal Act ("ACCA") upon conviction of one count of being a felon in possession of a firearm. (See Petition at ¶¶ 9-12). In determining that Petitioner qualified for sentencing under the ACCA, the sentencing court determined that, in addition to two convictions which Petitioner did not dispute qualified as violent felonies under the ACCA, Petitioner's three prior convictions for Washington second-degree burglary qualified as a "generic" burglary and valid ACCA predicates. (Id. at ¶ 12). Petitioner now contends that three cases subsequently decided by the United States Supreme Court render the three prior convictions for second-degree burglary invalid ACCA predicates.
Normally, a defendant convicted of unlawful possession of a firearm may be sentenced to a statutory maximum of ten-years of imprisonment. 18 U.S.C. § 924(a)(2). However, the ACCA mandates a minimum 15-year prison sentence for anyone possessing a firearm after three prior felony convictions for any combination of drug offenses or violent felonies. See 18 U.S.C. § 924(e). See also Shepard v. United States, 544 U.S. 13, 15 (2005); United States v. Tighe, 266 F.3d 1187, 1191 (9th Cir. 2001). Thus, "[u]nder ACCA, the sentencing court's finding of a predicate offense, indisputably increases the maximum penalty." Descamps v. United States, 133 S.Ct. 2276, 2288 (2013).
In 2013, the United States Supreme Court decided Descamps, which clarified the method for determining whether a prior conviction qualified as a violent felony under the ACCA "when the crime of which the defendant was convicted has a single, indivisible set of elements." Descamps, 133 S.Ct. at 2282. The Court held that where a statute of conviction is "'indivisible'— i.e., one not containing alternative elements—that criminalizes a broader swath of conduct than the relevant generic offense[,]" a court may not review documents such as an indictment or plea colloquy to determine whether the defendant was convicted of a generic offense that qualifies as an ACCA predicate. Id. (holding that the defendant's prior conviction under California's burglary statute, which "defines burglary not alternatively, but only more broadly than the generic offense" of burglary under the ACCA, did not qualify as an ACCA predicate offense).
In June 2015, the Supreme Court decided Johnson v. United States, 135 S.Ct. 2551 (2015), which considered the "residual clause" of the ACCA which identifies qualifying predicate offenses as "involv[ing] conduct that presents a serious potential risk of physical injury to another." Johnson, 135 S.Ct. at 2555-56 (quoting 18 U.S.C. § 922(e)(2)(B)). The Court held that "imposing an increased sentence under the residual clause of the [ACCA]...violates the Constitution's guarantee of due process." Id. at 2563. The Supreme Court later held that Johnson's holding is a new substantive rule of constitutional law that applies retroactively to cases on collateral review. See Welch v. United States, 136 S.Ct. 1257 (2016).
In June 2, 2016, the Supreme Court decided Mathis v. United States, 136 S.Ct. 2243 (2016), which involved a situation where the statute of conviction enumerated "various factual means of committing a single element." Mathis, 136 S.Ct. at 2249. The Court held that a prior conviction did not qualify as a generic form of a predicate offense listed in the ACCA where one of the predicate statute's specified means creates a match with the generic offense, even though the broader element would not. Id. at 2250-54. (Iowa's burglary statute did not qualify as the generic form of a predicate offense listed in the ACCA because the Iowa statute lists a broader range of places where the crime can be committed than qualify as generic burglary, and the jury need not agree on which of the locations was actually involved). Thus, the Court made clear that "[h]ow a given defendant actually perpetrated the crime—what we have referred to as the 'underlying brute facts or means' of commission...—makes no difference; even if his conduct fits within the generic offense, the mismatch of elements saves the defendant from an ACCA sentence." Id. at 2251 (quoting Richardson v. United States, 526 U.S. 813, 817 (1999)). The Ninth Circuit recently held that Mathis clarifies existing rules and does not establish a new rule of constitutional law. Arazola-Galea v. United States, 876 F.3d 1257, 1259 (9th Cir. 2017).
Relying on Descamps, Johnson, and Mathis, Petitioner argues that he is entitled to relief under 28 U.S.C. § 2255(e), also known as the "escape hatch" or "savings clause". As discussed below, a petitioner qualifies for the escape hatch when he makes a claim of actual innocence, and has not had an unobstructed procedural shot at presenting that claim. Petitioner argues that Descamps, Johnson, and Mathis constitute a material change in the law that demonstrate he is actually innocent of the ACCA sentencing enhancement because under the new caselaw, his prior convictions do not trigger the ACCA. Petitioner asserts that under the new caselaw, his sentence is illegal, "as it exceeds the statutory maximum sentence under 18 U.S.C. § 924(a)(2)." (Petition at ¶ 28; see also id. at ¶ 31 (arguing that "his 262-month sentence exceeds the 10-year statutory maximum available under 18 U.S.C. § 924(a)(2)."). The government "concedes, pursuant to Descamps and Mathis, that the second degree burglary convictions no longer currently qualify as violent felonies pursuant to 18 U.S.C. § 924(e)(2)(b)(ii). As such, without application of the second degree burglary convictions, [Petitioner] would not qualify for the statutory ACCA sentencing enhancement if he was sentenced today." (Response at 17). However, the government argues that Petitioner does not qualify for relief because he does not satisfy the requirements of the escape hatch.
Because, as discussed below, resolution of the instant action requires consideration of the procedural history of Petitioner's prior attempts to present the sentencing issue, the Court turns to the factual and procedural history of Petitioner's case.
II. Factual and Procedural History
In January 2005, Petitioner was convicted after a jury trial of being a Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g)(1), in the Eastern District of Washington. (Petition at ¶¶ 9-10). Based on the Presentence Investigation Report ("PSIR") (Doc. 41), Petitioner had prior convictions for first-degree robbery and assault with intent to kill with a deadly weapon with malice and first-degree assault, in addition to three prior convictions for second-degree burglary. (Response at 3 (citing PSIR); see also Petition at ¶ 11). Petitioner objected to his classification in the PSIR as an armed career criminal because the state statutes applicable to his second degree burglary convictions were "broader than that allowed under the Taylor categorical approach to determining whether specific burglary convictions trigger ACCA considerations." (Petitioner's March 30, 2005 Objections to PSR and Sentencing Memorandum (Doc. 43) at 2, filed in United States v. Smith, No. CR 04-096-JLQ (E.D. Wash.)). On April 13, 2005, at sentencing, the district court overruled Petitioner's objections and determined that Petitioner qualified pursuant to the ACCA for the statutorily prescribed minimum 15-year term of imprisonment, and ultimately imposed a 262-month sentence followed by a three-year term of supervised release. (Response at 3 citing Appendix to Response ("App.") at 2; Response, App. at 3; see also Response at 3-4 (quoting App. at 7-9 (sentencing court's Memorandum Opinion Re: Imposition of Sentence detailing "'Mr. Smith's violent felony history commenc[ing] in 1978....'")). In making the sentencing determination, the court relied on Petitioner's admissions in connection with his pleas of guilty to each of the burglary convictions to conclude that each amounted to a 'generic' burglary conviction as described in Taylor. (See Petition at ¶ 12).
In Taylor v. United States, 495 U.S. 575, (1990), the Supreme Court set out "the rule for determining when a defendant's prior conviction counts as one of ACCA's enumerated predicate offenses (e.g. burglary)." Descamps, 133 S.Ct. at 2283.
The Court has granted Petitioner's Motion to take Judicial Notice of Documents Filed in Prior Court Proceedings ("Motion for Judicial Notice"). (Doc. 33; see also Doc. 33 (documents); Doc. 37 (Index)).
Petitioner appealed his conviction and the ACCA sentencing determination, arguing that his "'convictions for burglary do not qualify as violent felonies because they did not include the elements of generic burglary.'" (Response at 4 (quoting United States v. Smith, 178 F. App'x 733, 734-35 (9th Cir. May 8, 2006) ("Smith (direct appeal)"). The United States Courts of Appeals for the Ninth Circuit affirmed Petitioner's conviction and sentence. Smith (direct appeal), 178 F. App'x 733. Upon reviewing the charging document for Petitioner's 1984 conviction for burglary to determine the actual conduct supporting that conviction, the appellate court agreed with the district court that the 1984 conviction amounted to a generic burglary as described in Taylor. Id. at 735. Because Petitioner did not contest that he had two other qualifying prior convictions that were not burglaries, the Ninth Circuit affirmed the sentence without considering the validity of the other two burglary convictions as ACCA predicates. (Petition at ¶ 13). See also Smith (direct appeal), 178 F. App'x at 735.
Petitioner "did not petition for a writ of certiorari in the United States Supreme Court. His conviction and sentence became final on August 7, 2006, when the time for filing a petition for certiorari expired." (Petition at ¶ 14).
In 2015, Petitioner filed a motion to recall the mandate, which the Ninth Circuit denied. (See Motion for Judicial Notice (Motion to Recall the Mandate (Doc. 19-2)) & (Amended Order (Doc. 19-4))).
Petitioner next filed a pro se motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255, asserting that his sentencing counsel had been ineffective by failing to object to information contained in the PSIR supporting the ACCA finding. (See Petition at ¶ 15; Response at 5). The sentencing court denied Petitioner's § 2255 motion, reaffirming its conclusion concerning, among other things, that Petitioner's three prior convictions for second-degree burglary in violation of Washington law qualified as "generic" burglary and valid ACCA predicates based on the underlying conduct Petition admitted in connection with his guilt pleas. (See Response, App. at 14-15). The sentencing court and the Ninth Circuit each subsequently denied a certificate of appealability. (Petition at ¶ 15).
Petitioner filed a second § 2255 motion which did not address the ACCA determination. (See Response at 5; see also Response, App. at 18-21 (Petitioner's argument concerned the court's finding relating to an enhanced offense level)). The sentencing court transferred the matter to the Ninth Circuit for determination whether Petitioner could file a second or successive motion, and the Ninth Circuit denied such authorization. (See Response, Appx. at 18-21; Motion for Judicial Notice (Ninth Circuit Order (Doc. 18-4))).
In June 2014, Petitioner filed a third successive pro se motion pursuant to 28 U.S.C. § 2255(f)(3) relying on Descamps to challenge his sentence. (See Doc. 100 filed in United States v. Smith, No. CR 04-096-JLQ (E.D. Wash.)). Because Petitioner failed to seek authorization from the Ninth Circuit to file a successive § 2255 motion, the district court transferred Petitioner's motion to the Ninth Circuit for determination whether he should be authorized to file a successive motion. (See Response, Appx. at 22-26). The Ninth Circuit denied Petitioner such authorization because he failed to establish a prima facie showing under 28 U.S.C. § 2255(h). (Motion for Judicial Notice, (Doc. 14-3) (citing Ezell v. United States, 778 F.3d 762, 766-67 (9th 2015) (holding that Descamps did not announce a new rule of constitutional law).
In August 2015, Petitioner, acting pro se, sought leave from the Ninth Circuit to file a second or successive petition in light of Johnson. (Motion for Judicial Notice (Doc. 13-1)). The Ninth Circuit denied the request "[b]eause the record shows that petitioner's sentence was not enhanced by the residual clause of the Armed Career Criminal Act, Johnson does not apply." (Motion for Judicial Notice (Doc. 13-2)).
In November 2015, Petitioner sought leave from the Ninth Circuit to file a pro se a "Second or Successive Petition Under 28 U.S.C. § 2254 or Motion Under 28 U.S.C. § 2255." (Motion for Judicial Notice (Doc. 15-1)). Petitioner relied on Johnson to argue that his sentence under the ACCA was unconstitutional. The Ninth Circuit denied Petitioner's application, commenting that Petitioner's position was not grounded in Johnson, but in Descamps. Smith v. United States, No. 15-73951 (9th Cir.) (December 9, 2016 Order (Dkt. 36)) The court went on to state that Petitioner's challenge to the application of the modified categorical approach to his sentence was untimely because such a claim should have been raised no more than one year after his conviction as an armed career criminal became final. Id. The court further stated that because Descamps did not announce a new rule of constitutional law, Petitioner failed to meet the prerequisites for filing a second or successive § 2255 motion. Id.
Petitioner then filed the instant Petition under 28 U.S.C. § 2241 seeking relief under the escape hatch of 28 U.S.C. § 2255(e).
III. Discussion
A. Jurisdiction
A federal court may not entertain an action over which it has no jurisdiction. Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000). A federal prisoner who seeks to challenge the legality of a sentence must generally do so by motion raised in the sentencing court pursuant to 28 U.S.C. § 2255. See Harrison v. Ollison, 519 F.3d 952, 954 (9th Cir. 2008); Tripati v. Henman. 843 F.2d 1160, 1162 (9th Cir. 1988). In contrast, a prisoner who seeks to challenge the manner, location, or conditions relating to execution of his sentence must bring a petition pursuant to 28 U.S.C. § 2241 in the custodial court. Hernandez, 204 F.3d at 864. An exception to these general rules is created by the escape hatch provided at 28 U.S.C. § 2255(e). The escape hatch permits a federal prisoner to file a habeas petition under § 2241 to challenge the legality of a sentence when the prisoner's remedy under § 2255 is "inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255(e).
The escape hatch is a narrow doctrine to be used in extremely limited circumstances. United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997). Petitioner has the burden of persuading the court that a § 2255 petition is inadequate or ineffective. Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963). If a petitioner proceeding under § 2241 fails to meet his burden of demonstrating that the remedy under § 2255 is inadequate or ineffective, then his § 2241 petition must be dismissed for lack of jurisdiction. See Ivy v. Pontesso, 328 F.3d 1057, 1060 (9th Cir. 2003). Cf. Muth v. Fondren, 676 F.3d 815, 818 (9th Cir. 2012) ("§ 2241 petitions must be filed in the district where the petitioner is confined, while § 2255 motions must be filed in the district where the petitioner was sentenced.") (citing United States v. Stephens, 464 F.3d 895, 897 (9th 2006)).
"Before proceeding to the merits of a § 2241 petition ostensibly brought pursuant to the 'escape hatch' of § 2255, a district court must resolve the threshold question whether a petition was properly brought under § 2241 or whether the filing should instead be construed as a § 2255 motion." Muth, 676 F.3d at 818 (citing Hernandez, 204 F.3d at 865)). Thus, "[w]here a petitioner claims that § 2255 provides an ineffective remedy, the district court in which the petition is brought is required initially to rule whether a § 2241 remedy is available under the savings clause." Hernandez, 204 F.3d at 866.
The escape hatch applies "when a petitioner (1) makes a claim of actual innocence, and (2) has not had an 'unobstructed procedural shot' at presenting that claim." Stephens, 464 F.3d at 898 (citation omitted); see also Alaimalo v. United States, 645 F.3d 1042, 1047 (9th Cir. 2011). Further, the Ninth Circuit has recognized that "§ 2255's remedy is not 'inadequate or ineffective' merely because § 2255's gatekeeping provisions prevent the petitioner from filing a second or successive petition[.]" Ivy, 328 F.3d at 1059 (citing Lorentsen v. Hood, 223 F.3d 950, 953 (9th Cir. 2000)); see also Lorentsen, 223 F.3d at 953 ("[T]he general rule in this circuit is that the ban on unauthorized second or successive petitions does not per se make § 2255 'inadequate or ineffective.'"). Thus, the expiration of the statute of limitations for filing a § 2255 motion or the previous denial of the petitioner's application to file a successive § 2255 petition do not mean that remedies available under § 2255 were inadequate or ineffective. See Holland v. Pontesso, 234 F.3d 1277 (9th Cir. 2000) (expiration of the statute of limitations for filing a § 2255 motion does not make § 2255 inadequate or ineffective); Harrison, 519 F.3d at 960 (the ban from raising a claim in a second or successive petition does not mean that § 2255's remedy was inadequate or ineffective).
Like the Ninth Circuit in Ivy and Stephens, this Court begins the analysis with the second factor, which considers whether Petitioner had an unobstructed procedural shot at presenting his claims by way of direct appeal or a § 2255 motion. When determining whether a petitioner has been denied an "unobstructed procedural shot," courts consider "'(1) whether the legal basis for petitioner's claim did not arise until after he had exhausted his direct appeal and first § 2255 motion; and (2) whether the law changed in any way relevant to petitioner's claim after that first § 2255 motion.'" Alaimalo, 645 F.3d at 1047 (quoting Harrison, 519 F.3d at 960).
1. Prior opportunities to raise claim
a. Johnson is inapplicable
Petitioner contends that "[i]t was not until Johnson was decided that ... [his] challenge to the sentencing court's treatment of his burglary convictions as violent felonies fully materialized." (Reply at 6). Petitioner stresses that "Descamps expressly did not decide whether a conviction under ... [Washington's second-degree burglary statute] might qualify as a 'violent felony' under the residual clause...." (Id. at 7-8). Thus, according to Petitioner, "[b]oth before and after Descamps, the residual clause was available as a backstop to rescue convictions under burglary statutes that did not..." otherwise qualify for ACCA enhancement. (Id. at 8). See e.g. Summers v. Feathers, 119 F.Supp. 3d 1284, (D. Or. 2015) (government argued that even if the ACCA sentencing enhancement was improper under Descamps, enhancement would still be proper under the residual clause). Therefore, Petitioner argues that it was not until Johnson was decided that the he fell outside the entire purview of the ACCA. (Reply at 8).
Petitioner "acknowledges that the Ninth Circuit has said three times that his sentencing challenge rests solely on Descamps" and not Johnson. (Id. at 9) (citations omitted); see also Doc. 13-2 (Smith v. United States, No. 15-72688 (9th Cir.) (Oct. 16, 2015 Order stating, when denying application to file second or successive § 2255 petition: "Because the record shows that petitioner's sentence was not enhanced by the residual clause of the Armed Career Criminal Act, Johnson does not apply."). Petitioner was not sentenced pursuant to the residual clause that was later invalidated in Johnson and Petitioner's speculation that he would have been resentenced under the residual clause had he been successful in challenging his sentencing enhancement prior to Johnson does not change that fact. On the facts of Petitioner's case, Johnson is inapplicable to the escape-hatch analysis.
b. Descamps and Mathis
To establish that he has not had an unobstructed procedural shot, "it is not enough that the petitioner is presently barred from raising his claim of innocence by motion under § 2255. He must never have had the opportunity to raise it by motion." Ivy, 328 F.3d at 1060.
The government contends that Petitioner is unable to establish that he has not had an unobstructed procedural shot to present his claim. According to the government, Petitioner "had an ample and unobstructed path to the Supreme Court to seek the clarification years before Mr. Descamps exhausted his direct appeal and succeeded where the Defendant/Petitioner in this case defaulted on the full opportunity to seek review of his ACCA sentence." (Response at 12). According to the government, Petitioner's "possibility [to exhaust his claim] is underscored by the fact that the Ninth Circuit did not settle the question eventually resolved in Descamps—whether the modified categorical approach is limited to 'divisible' statutes—until its long anticipated en banc decision in United States v. Aguila-Montes de Oca, 655 F.3d 915 (2011). That en banc opinion followed a panel decision that originally issued in April 2008 and that was pending before the Ninth Circuit in 2007, see 523 F.3d 1071, the same year that that court denied Defendant-Petitioner's request for a certificate of appealability to challenge the denial of his first Section 2255 motion." (Id. at 12-13 (citing Response, Appx. at 12-17)). In sum, the government argues that Petitioner "could have been Descamps." (Id. at 13 (emphasis omitted)). The government relies on recent Eleventh Circuit authority for the premise that Petitioner "'could have tested the legality of his detention by requesting that [the court of appeals] reconsider [its] precedent en banc or by petitioning the Supreme Court for a writ of certiorari,'" and had Petitioner done so, he might have prevailed as did the litigant who sought such review. (Id. at 13 (citing McCarthan v. Director of Goodwill Industries-Suncoast, Inc., 851 F.3d 1076, 1087 (11th Cir. 2017)).
Aguila-Montes de Oca, held that the modified categorical approach applied to statutes "that are 'missing an element of the generic crime.'" Aguila-Montes de Oca, 655 F.3d at 927. Descamps abrogated Aguila-Montes de Oca.
Here, the record reflects that Petitioner argued on direct appeal that his additional convictions for burglary do not qualify as violent felonies because they did not include the elements of generic burglary. See Taylor v. United States, 495 U.S. 575, 598-99, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (explaining that "burglary" as used in the ACCA means "burglary" in "the generic sense"). He argues that, under the Washington statute of conviction, he could have been convicted of entering a mere fenced area or storage container, rather than a building as required for
generic burglary. See Wash. Rev.Code § 9A.52.030(1) (criminalizing burglary of any "building"); Wash. Rev.Code § 9A.04.110(5) (defining "building" as a "fenced area, vehicle, railway car, [and] cargo container").Smith (direct appeal), 178 Fed. App'x. at 735. The Ninth Circuit, citing Taylor, rejected Petitioner's argument and affirmed his sentence. Id. The appellate court docket reflects that Petitioner filed a petition for rehearing en banc, which was denied. (See Doc. 37-5 at 4 (docket sheet for direct appeal at docket entries 38, 40)).
The government finds primary support for its argument in the Ninth Circuit's decision in Harrison. The petitioner in Harrison contended that his claim of actual innocence entitling him to bring a § 2241 petition did not arise until the Supreme Court decided Jones v. United States, 529 U.S. 848 (2000), years after his first § 2255 motion. Harrison, 519 F.3d at 959. The Ninth Circuit affirmed the district court's reasoning that "Harrison's failure to raise [his] claim was not caused by procedural obstructions but by his own defaults: Harrison failed to raise this argument on direct appeal, voluntarily dismissed his appeal, and then was procedurally barred from raising the claim in his initial § 2255 motion." Id. at 959-60. The court went on to stress that the Jones decision relied on by Harrison did not effect a material change in the applicable law because the Ninth Circuit had ruled consistently with Jones and its antecedents before Harrison filed his direct appeal. Id. at 960-61 (noting that "five years before Jones was decided, another defendant presented this court with precisely the same...argument Harrison makes today, and we reversed her conviction....") (citation omitted). In short,
Harrison was procedurally barred from filing his initial § 2255 motion because he failed to pursue his direct appeal. See Harrison, 519 F.3d at 956. A second § 2255 motion was dismissed as a second or successive motion for which Harrison had failed to obtain authorization to file. Id. The Ninth Circuit subsequently denied Harrison's request for authorization to file the second § 2255 motion. Id.
the case law, as it stood at the time that Harrison pleaded guilty, failed to prosecute his direct appeal, and filed his first motion under § 2255, invited the very argument that Harrison attempts to raise many years later through collateral attack.
While Jones gave additional encouragement for defendants to...[raise the claim Harrison sought to raise under the escape hatch], we cannot say such further support constitutes a change in the law creating a
previously unavailable legal basis for petitioner's claim.Id. (emphasis in original) (citation omitted).
The government reads Harrison as requiring exhaustion of remedies and argues that Petitioner's failure to petition for a writ of certiorari defeats his ability to establish that he did not have a prior opportunity to raise his ACCA sentencing claim.
The government also acknowledges the Ninth Circuit's decision in Alaimalo where the petitioner, like Petitioner here, first raised his claim of actual innocence on direct appeal, but the Ninth Circuit affirmed his convictions and sentences. Alaimalo, 645 F.3d at 1045 (noting that the appellate court on direct appeal did not address petitioner's claim that his conduct did not qualify for importation prohibited by the statute of conviction). Like Petitioner here, Alaimalo, also timely filed a § 2255 motion alleging ineffective assistance of counsel, which the district court denied. Id. Unlike Petitioner here, Alaimalo did not petition for en banc review. Both the instant Petitioner and Alaimalo did not petition for a writ of certiorari to the U.S. Supreme Court.
Alaimalo had been convicted of importing methamphetamine from California to Guam in violation of 21 U.S.C. §§ 952(a) and 960, and possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a). He brought a § 2241 petition relying on the escape hatch to argue that he was actually innocent because transporting drugs from one location (California) within the jurisdiction of the United States to another location (Guam) within the jurisdiction of the United States did not qualify as "importation" under § 21 U.S.C. § 952(a). See Alaimalo, 645 F.3d at 1045.
In Petitioner's case, a certificate of appealability was denied with regard to the § 2255 motion; whereas, in Alaimalo, the Ninth Circuit affirmed the district court's denial. See Alaimalo, 645 F.3d at 1045.
The government indicates that "[a] Westlaw history search did not indicate 'cert. denied' from the direct appeal." (Response at 14 n. 9). Further, the appellate docket for Alaimalo does not reflect notice from the Supreme Court that a petition for writ of certiorari had been filed. Compare appellate docket for Descamps reflecting such notice. Accordingly, the Court presumes Alaimalo did not file a petition for writ of certiorari.
After Alaimalo concluded his § 2255 action, "the Ninth Circuit en banc court held that transporting drugs from one location within the United States (California) to another (Guam) does not constitute importation within the meaning of 21 U.S.C. § 952(a)[,]" thus overruling two previous decisions holding to the contrary. Id. at 1046 (citing United States v. Cabaccang, 332 F.3d 622, 623 (9th Cir. 2003)). Alaimalo was subsequently granted relief under the escape hatch because "Cabaccang effected a material change in the law applicable to Alaimalo's case, such that the legal basis for his actual innocence claim did not become available until Cabaccang was decided." (Id. at 1048). This was so even though Alaimalo did not seek en banc review of the denial of his direct appeal, which essentially raised the same issue that was decided by the en banc court in Cabaccang:
The mere possibility that the Ninth Circuit would overrule its previous holdings en banc did not make Alaimalo's actual innocence claim "available" to him for the purposes of § 2241. If it did, there would be a legal basis for any actual innocence claim that is currently foreclosed by binding Ninth Circuit law, as there is always the infinitesimally small possibility of sudden en banc reversal. Requiring a petitioner to raise all theoretically possible actual innocence claims in his first § 2255 motion would put an unreasonable burden on petitioners and the courts. "It would just clog the judicial pipes to require defendants, on pain of forfeiting all right to benefit from future changes in the law, to include challenges to settled law in their briefs on appeal and in postconviction filings." [In re] Davenport, 147 F.3d [605] at 610 [(7th Cir. 1998)].Id. at 1048-49 (footnote omitted); see also id. at 1048 n.2 (the court also noted only 16 cases were heard en banc the year that Alaimalo's direct appeal was decided). The court also stressed that "[f]or purposes of determining whether a claim was unavailable under § 2241, a court looks to whether controlling law in this circuit foreclosed petitioner's argument." Id. 645 F.3d at 1048 (emphasis in original). Because Cabaccang changed controlling law in the Ninth Circuit, the court concluded that Alaimalo did not have an unobstructed chance to present his actual innocence claim prior to that decision. Id. at 1049.
According to the government, "[t]he question for this Court is whether this case is more like Harrison or Alaimalo. If it is more like Harrison, the United States respectfully submits that the Defendant's motion [sic] should be dismissed....If the Court determines, however, that it is more akin to Alaimalo, the United States concedes that upon review, the Defendant/Petitioner would not qualify for ACCA sentencing today and would likely be entitled to relief via the escape hatch." (Response at 15-16 (citations omitted)).
Petitioner points out that when he was sentenced and filed his direct appeal, it was well established in the Ninth Circuit "that a federal sentencing judge could look to a signed plea agreement to determine whether the defendant had admitted in the prior committing generic burglary, even if the statute under which he was convicted was overbroad." (Reply at 11 (citing United States v. Bonat, 106 F.3d 1472, 1476-77 (9th Cir. 1997)). In rejecting Petitioner's challenge to the ACCA sentencing enhancement, the appellate court cited Bonat, among other Ninth Circuit authority. See Smith, 178 Fed.App'x. at 735. Cf. Aguila-Montes de Oca, 655 F.3d 915 (noting that before 2007, Ninth Circuit "cases drew no distinction between different kinds of statutes in terms of when the modified categorical approach could be applied."). In fact, Descamps itself reversed a decision from the Ninth Circuit because, in essence, the Ninth Circuit's approach strayed from Supreme Court "caselaw explaining the categorical approach and its 'modified' counterpart...." Descamps, 133 S.Ct. at 2283; see also id. 2288 ("the Ninth Circuit's ruling flouts our reasoning—here, by extending judicial factfinding beyond the recognition of a prior conviction."). Thus, unlike Harrison, Petitioner did in fact raise the issue on appeal and sought en banc review. In his initial § 2255 motion, Petitioner also raised claims of ineffective assistance of counsel regarding the enhanced sentencing. Unlike Harrison, and more akin to Alaimalo, Ninth Circuit caselaw was set against Petitioner.
Petitioner's claim here rests on both Descamps and Mathis, and the government concedes that pursuant to both Descamps and Mathis, Petitioner would not qualify for the statutory ACCA sentencing enhancement if he was sentenced today. (Response at 17). The record reflects that in the wake of Descamps, the Ninth Circuit interpreted the Washington statute at issue in Petitioner's case to be a "divisible statute" to which "a modified categorical approach can be used...." (Motion for Judicial Notice (Amended Order denying Petitioner's motion to recall the mandate (Doc. 19-4))). Thus, the government's argument that the law in the Ninth Circuit was not settled until 2011 when Aguila-Montes de Oca was decided has little merit given that even after the Supreme Court abrogated Aguila-Montes de Oca, the Ninth Circuit continued to apply the modified categorical approach to Petitioner's case when denying his motion to recall the mandate. See id. Moreover, as Petitioner points out, Bonat, supra, which predated Aguila-Montes de Oca guided the Ninth Circuit's analysis in Petitioner's direct appeal. (See Reply at 11).
The government points out that Petitioner could have petitioned for a writ of certiorari and achieved the same result as Descamps. However, the government cites no Ninth Circuit opinion requiring this level of exhaustion. While the Alaimalo court did not specifically address whether a petition for a writ of certiorari was required to establish unavailability for purposes of the escape hatch, it did state that the petitioner was not required to seek en banc review, stressing the low number of instances where such review is granted, among other reasons. See Alaimalo, 645 F.3d at 1048-49. Although the government relies on recent authority from the Eleventh Circuit requiring a petitioner to seek en banc review or petition for writ of certiorari in the Supreme Court, McCarthan, 851 F.3d at 1099, that case is at odds with Alaimalo which granted a petition under the escape hatch where the petitioner failed to seek en banc review. Nor did the Alaimalo court factor into its decision whether a petition for writ of certiorari had been filed. Moreover, the District Court for the District of Arizona has generally observed that the Eleventh Circuit's test for applying the escape hatch is considerably stricter than that applied in the Ninth Circuit. Rojas v. Shartle, 2017 WL 4238735, *4-5 (D. Ariz. September 25, 2017) (discussing McCarthan, 851 F.3d 1076).
Although the parties have not cited any cases other than McCarthan on this issue, it appears that the Third and Eighth Circuits have also noted that to exhaust remedies under § 2255, the defendant is required to petition the Supreme Court for certiorari before filing a petition for writ of habeas corpus. See Crismond v. Blackwell, 333 F.2d 374, 377 (3rd Cir. 1964); Weber v. Steele, 185 F.2d 799, 800 (8th Cir. 1950). These decisions were in existence long before Alaimalo was decided, yet the Ninth Circuit granted relief under the escape hatch without requiring the petitioner to petition for a writ of certiorari.
As the government here concedes, the Ninth Circuit allowed Alaimalo's petition under the escape hatch based on a decision resulting from another defendant's filing of a petition seeking en banc review when Alaimalo himself could have sought the same review, but did not. (Response at 15). Given the Ninth Circuit's decision that a petitioner is not required to seek en banc review in order to qualify for the escape hatch, it is difficult to conclude that the Ninth Circuit would require a petitioner to request discretionary review by the Supreme Court before seeking relief under the escape hatch. In any event, the Ninth Circuit did not require that step in Alaimalo, and without clear direction from the Ninth Circuit to the contrary, Alaimalo supports the conclusion that Petitioner was not required to do so in this case.
At least one set of commentators have noted that "[f]ailure to seek review in the Supreme Court does not serve as a procedural default of claims the movant seeks to raise in § 2255 proceedings." Randy Hertz & James S. Leibman, 2 Federal Habeas Practice and Procedure, § 41.4[a] n.10. Although, to support this premise, Hertz and Liebman cite generally to authority relating to state prisoner § 2254 proceedings, they note elsewhere the similarity in many regards between § 2255 and § 2254. See generally, id. at § 41.1
Additionally, to establish previous unavailability to raise a claim, "[a]n intervening court decision must 'effect a material change in the applicable law'...." Alaimalo, 645 F.3d at 1047. (citations omitted). "[A] decision that simply 'provides further clarification' of the statute of conviction without 'materially vary[ing] from the statutory construction set forth' in previous case law does not effect such a change." Id. at 1048. For example, in Harrison, discussed supra, the Ninth Circuit held that the Supreme Court's decision in Jones "did not effect a material change in the law but only clarified a prior Supreme Court decision and two Ninth Circuit opinions consistent with Jones's holding[]." (Id.) (citing Harrison, 519 F.3d at 960). In contrast, the Alaimalo court held that an intervening decision that "expressly overruled settled law[]" effected a material change in the law applicable to the petitioner's case, such that the legal basis for his actual innocence claim did not become available until the intervening case was decided. Id.
The Ninth Circuit has been clear that "Descamps is a statutory interpretation case: It clarifies when certain crimes qualify as violent felonies under the ACCA, a congressional enactment." Ezell v. United States, 778 F.3d 762, 766 (9th Cir.), cert. den., 136 S.Ct. 256 (2015). The Ninth Circuit has also pointed out that "[t]he Supreme Court did not announce a new rule in Descamps. Descamps did not impose a new obligation nor did it break new ground. Rather, as both the Supreme Court and we have recognized, Descamps clarified application of the modified categorical approach in light of existing precedent." Id. For this reason, the Ninth Circuit held that "even if the Supreme Court did announce a new rule in Descamps, that rule is not constitutional" and, thus, Descamps did not serve as a basis for relief under § 2255(h). Id.; see also id. at 767 ("In sum, Descamps did not announce a new rule, and even if it did, that rule is not constitutional."). Likewise, the Ninth Circuit has also held that Mathis did not establish a new rule of constitutional law, but provides "clarification of existing rules" regarding the "'categorical' analysis." Arazola-Galea, 876 F.3d. at 1259. Cf. United States v. Martinez-Lopez, 864 F.3d 1034, 1039 (9th Cir. 2017) ("Mathis did not change the rule stated in Descamps; it only reiterated that the Supreme Court meant what it said when it instructed courts to compare elements.").
Unlike §2255(e), the test for § 2255(h) requires, among other things, that the intervening decision announce a new rule of constitutional law.
While there can be no disagreement that Descamps and Mathis are statutory interpretation cases, the fact remains that Descamps expressly abrogated settled Ninth Circuit law. See Descamps, 133 S.Ct. at 2288 (indicating that the Ninth Circuit's approach "flouts this Court's reasoning."). Even after Descamps, the Ninth Circuit persisted in upholding the modified categorical approach to Petitioner's case. (See Motion for Judicial Notice, (Amended Order denying Petitioner's motion to recall the mandate (Doc. 19-4))). Now, after Descamps and Mathis, the government concedes that Petitioner would not qualify for the ACCA sentencing enhancement. Thus, this case is nothing like Harrison where the intervening decision clarified a Supreme Court decision and two Ninth Circuit opinions consistent with the intervening decision. Here, the intervening decision, not only reversed the Ninth Circuit's analysis but also resulted in a change of Ninth Circuit precedent and analysis construing the ACCA directly relevant to Petitioner's claim.
The District Court for the Central District of California has held that Descamps did not result in a material change in the law for purposes of the escape hatch. See Aguilar-Cortez v. Entzel, 2017 WL 1363303 (C.D. Cal. Mar. 3, 2017); Jones v. McGrew, 2014 WL 2002245 (C.D. Cal. May 15, 2014)). Aguilar-Cortez so ruled because "the Supreme Court has not made its holding retroactive and did not announce a new rule of constitutional law." 2017 WL 1363303, at *4. However, that court appeared to apply the test for § 2255(h)(2). For purposes of the escape hatch, there is no requirement that the material change in the law establish a new rule of constitutional law. Further, the issue of retroactivity is discussed infra.
In holding that Descamps did not effect a material change in the applicable law, the Jones court first concluded that the petitioner failed to raise the ACCA sentencing enhancement in his first § 2255 motion. Jones, 2014 WL at 2002245, at *5. The court went on to state that Descamps did not effect a material change in the applicable law because "the Descamps Court clearly communicated its belief that its ruling in the case was 'dictated' by existing precedent." Id. at *5 (quoting Descamps, 133 S.Ct. at 2283). While the Jones court acknowledged that the Descamps Court found the Ninth Circuit had "flout[ed]" the Supreme Court's established reasoning, id. at *5, the Jones court did not discuss the fact that Descamps expressly abrogated settled Ninth Circuit law. Nor did the Jones court acknowledge that under Alaimalo, an intervening decision that expressly overruled settled law effects a material change in the applicable law for purposes of the escape hatch. Alaimalo, 645 F.3d at 1048.
Like AguilarCortez and Jones, other district courts in the Ninth Circuit have denied relief under the escape hatch, indicating among other things that Descamps is not retroactive on collateral review. Mitchell v. United States, 2015 WL 729658, at *5 (C.D. Cal. 2015) (also finding petition untimely filed); Lil v. Copenhaver, 2014 WL 6773841, at *5 (E.D. Cal. 2014). For the reasons stated in this Report and Recommendation, the undersigned respectfully disagrees with these decisions.
There is no question that had Ninth Circuit law been consistent with Descamps, then this case would be like Harrison. However, as the Descamps decision made clear, the Ninth Circuit had wrongly applied the modified categorical approach. Thus, unlike Harrison, the Ninth Circuit's caselaw in this instance was inconsistent with Descamps and its progeny like Mathis. Instead, Petitioner's case falls within the purview of Alaimalo. The government has conceded that if the Court determines that Petitioner's case is akin to Alaimalo, then Petitioner is likely entitled to relief. (Response at 1516).
As a final matter, the parties have not discussed the issue of retroactivity. Consequently, it is arguable that the government has waived such an argument. But see Caspari v. Bohlen, 510 U.S. 383, 389 (1994) ("[A] federal court may, but need not, decline to apply Teague if the [government] does not argue it."); Teague v. Lane, 489 U.S. 288, 300 (1989) (addressing issue of retroactivity sua sponte); Webster v. Woodford, 369 F.3d 1062, 1067 (9th Cir. 2004) (even though state waived issue of retroactivity by failing to timely raise it, the court exercised discretion to reach the issue in the interests of judicial economy). In any event, under the law with regard to retroactivity, "[a]n old rule applies both on direct and collateral review, but a new rule is generally applicable only to cases that are still on direct review.'" Wharton v. Bockting, 549 U.S. 406, 416 (2007) (citing Griffith v. Kentucky, 479 U.S. 314 (1987)). Further, "[a] new rule is defined as a 'rule that ... was not 'dictated by precedent existing at the time the defendant's conviction became final.'" Id. (quoting Saffle v. Parks, 494 U.S. 484, 495 (1990) (emphasis omitted)).
In Descamps, the Supreme Court was clear that its holding "merely clarified existing precedent." Mays v. United States, 817 F.3d 728, 733 (11th Cir. 2016) (holding that Descamps applied retroactively on collateral review because it did not announce a new rule) (citing Descamps, 133 S.Ct. at 2283 ("Our case law explaining the categorical approach and its 'modified' counterpart all but resolves this case."); id. at 2285 ("That is the job, as we have always understood it, of the modified categorical approach); Ezell, 778 F.3d at 763 (Ninth Circuit "hold[ing] that the Supreme Court did not announce a new rule of constitutional law in Descamps. Rather, it clarified—as a matter of statutory interpretation—application of the ACCA in light of existing precedent."); United States v. Davis, 751 F.3d 769, 775 (6th Cir. 2014) ("The Supreme Court in Descamps explained that it was not announcing a new rule, but was simply reaffirming' an existing approach.")). Likewise, Mathis, which clarified Descamps, cannot be read as creating a new rule. See Arazola-Galea, 876 F.3d at 1259 ("Mathis does not establish a new rule of constitutional law; rather, it clarifies application of the 'categorical' analysis to the []ACCA[]....Our subsequent decisions have confirmed the notion that Mathis is a clarification of existing rules rather than a new rule itself."); id. (citing Mathis, 136 S.Ct. at 2251 (resolving the case on the basis of the Court's "longstanding principles," and explaining that Taylor "set out the essential rule governing ACCA cases more than a quarter century ago"); Martinez-Lopez, 864 F.3d at 1039 ("Mathis did not change the rule stated in Descamps; it only reiterated that the Supreme Court meant what it said when it instructed courts to compare elements."). Because Descamps and Mathis did not announce a new rule, but merely clarified existing precedent, the decisions should apply retroactively on collateral review. See e.g. Mays, 817 F.3d at 733 (holding that Descamps applied retroactively on collateral review); Hill v. Masters, 836 F.3d 591, 596 (6th Cir. 2016) (the government conceded that Descamps (and a Fourth Circuit case applying Descamps) applied retroactively to a Descamps claim raised under the escape hatch by a petitioner who was sentenced in 2001).
On the facts of this case, Petitioner, like the Petitioner in Alaimalo, has established that the legal basis for his claim did not arise until after he had exhausted his direct appeal and first § 2255 motion and the law changed in a way relevant to his claim after his direct appeal and first § 2255 motion. See Alaimalo, 645 F.3d at 1047 (quoting Harrison, 519 F.3d at 960).
2. Actual Innocence
"To establish actual innocence for purposes of habeas relief, a petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Alaimalo, 645 F.3d at 1047 (internal quotation marks and citations omitted); see also McQuiggin v. Perkins, 569 U.S. 383, 392 (2013) (when discussing the actual innocence exception in the context of a state petitioner's untimely filing under U.S.C. § 2244, the Court described the exception as a "'fundamental miscarriage of justice exception...grounded in the []equitable discretion[] of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons.'" (quoting Herrera v. Collins, 506 U.S. 390, 404 (1983)). "A petitioner is actually innocent when he was convicted for conduct not prohibited by law." Alaimalo, 645 F.3d at 1047. (citation omitted). However, the Ninth Circuit "has not yet resolved the question whether a petitioner may ever be actually innocent of a noncapital sentence for the purposes of qualifying for the escape hatch." Marrero v. Ives, 682 F.3d 1190, 1193 (9th Cir. 2012))
The government acknowledges that the Ninth Circuit has reserved the question whether "'a petitioner may qualify for the escape hatch if he received a sentence for which he was statutorily ineligible.'" (Response at 16 (quoting Marrero, 682 F.3d at 1194-95). Nonetheless, the government "concedes that Defendant/Petitioner would not qualify for ACCA sentencing today and would likely be entitled to relief via the escape hatch." (Id. (citing Marrero, 682 F.3d at 1194-95)). Petitioner reads the government's statements as indicating agreement that Petitioner has made a qualifying claim of actual innocence. (Reply at 5 (also pointing out that the government "does not advance any argument that Mr. Smith's claim does not qualify under the actual-innocence component of the escape hatch. This Court accordingly should treat that component as established in this case.") (emphasis in original)).
In Marrero, the court held jurisdiction was lacking under the escape hatch where the petitioner claimed "he would not qualify as a career offender were he to be sentenced under the post-2007 Guidelines...", because such a "claim is not one of actual innocence." Marrero, 682 F.3d at 1193. This was so because the petitioner's claim was "a purely legal claim that has nothing to do with factual innocence. Accordingly, it is not a cognizable claim of 'actual innocence' for the purposes of qualifying to bring a § 2241 petition under the escape hatch." Id.
The Marrero court did acknowledge that other circuit courts "have recognized exceptions to the general rule that a petitioner cannot be actually innocent of a noncapital sentence under the escape hatch." Id. at 1194. Those exceptions included that: a petitioner may qualify for the escape hatch if he received a sentence for which he was statutorily ineligible, as the instant Petitioner claims; a petitioner may be actually innocent of a sentencing enhancement if he was factually innocent of the crime that served as the predicate conviction for the enhancement; and a petitioner might be actually innocent for a sentencing enhancement if the sentence resulted from a constitutional violation. See id. at 1194-95 (citations omitted) (declining to endorse any of the exceptions because they were not at issue).
The District Court for the District of Arizona recently observed that At the time Marrero was decided, many other circuit courts had held that a petitioner generally cannot assert a cognizable claim of actual innocence of a noncapital sentencing enhancement in a § 2241 petition. See Marrero, 682 F.3d at 1193-1194. But, several of these circuits had noted, in dicta, that if a § 2241 petition alleged that a petitioner was sentenced to a greater term of imprisonment than authorized by the statute of conviction, then the petitioner may qualify for the escape hatch based on a claim of actual innocence. See Gilbert v. United States, 640 F.3d 1293, 1323 (11th Cir. 2011); Trenkler v. United States, 536 F.3d 85, 99 (1st Cir. 2008). The Seventh Circuit and the Sixth Circuit have since explicitly held that the
savings clause applies to a § 2241 petition when the petitioner is alleging that his sentence exceeded beyond that authorized by the sentencing scheme. See Brown v. Caraway, 719 F.3d 583 (7th Cir. 2013); Hill v. Masters, 836 F.3d 591 (6th Cir. 2016).Terry v. Shartle, 2017 WL 2240970, at *10 (D. Ariz. May 23, 2017), report and recommendation adopted, 2017 WL 5151130 (D. Ariz. Nov. 7, 2017). Cf. Terry v. Shartle, No. CV 15-107-TUC-CKJ (D. Ariz.) (December 6, 2017 Order (Doc. 68 at 1-2)) granting petition under the escape hatch where the government conceded petitioner "was actually innocent of the sentencing enhancement, that no reasonable juror would have convicted him of the enhancement, and that he was entitled to immediate release[]" because he had served his maximum sentence without the enhancement).
The Seventh Circuit granted an escape hatch claim where the petitioner challenged his designation as a career offender under pre-Booker era sentencing guidelines. Brown, 719 F.3d 583. The court so held even though the petitioner's sentence did not exceed the statutory maximum for the offense of conviction. The court stressed that the text of the escape hatch "focuses on the legality of the prisoner's detention...; it does not limit its scope to testing the legality of the underlying criminal conviction." Id. at 588 (pointing out that the §2255(e) is "applicable where [the] § 2255 remedy is 'inadequate or ineffective to test the legality of his detention.'" (quoting § 2255(e) (emphasis in original)). The court went on to state that "sentences imposed pursuant to erroneous interpretations of the mandatory guidelines bear upon the legality of the petitioner's detention for purposes of the savings clause." Id. Therefore, the court determined that "the misapplication of the sentencing guidelines [on the facts at bar]...represents a fundamental defect that constitutes a miscarriage of justice corrigible in a § 2241 proceeding[]", through the escape hatch. Id.
Relying in part on the reasoning set forth in Brown, the Sixth Circuit has also held that a petitioner may bring an action under the escape hatch to challenge "his misapplied career-offender enhancement..." in the pre-Booker era. Hill, 836 F.3d at 597-600. In so holding, the Hill court stated: "[t]o require that [the petitioner] serve an enhanced sentence as a career offender...is a miscarriage of justice where he lacks the predicate felonies to justify such a characterization." Id. at 600; see also id. at 599 (observing that "[s]erving a sentence imposed under mandatory guidelines (subsequently lowered by retroactive Supreme Court precedent) shares similarities with serving a sentence imposed above the statutory maximum. Both sentences are beyond what is called for by law, and both raise a fundamental fairness issue.") (citations omitted).
In Hill, the petitioner's escape hatch claim rested on Descamps and subsequent caselaw applying Descamps to hold that his predicate conviction no longer qualified as a crime of violence. See Hill, 836 F.3d at 593. In Hill, as here, the petitioner "would not have been treated as a career offender, and the sentencing court would have been required to impose a sentence within a lesser range." Id. at 599. --------
This Court agrees with the Terry court that "the reasoning of the Sixth and Seventh Circuits [is] persuasive, and it should govern the actual innocence analysis for the statutory sentencing enhancement..." in Petitioner's case. Terry, 2017 WL 2240970, at *10 ("the possibility that Petitioner's sentence is beyond what is called for by law raises a fundamental fairness issue and a potential miscarriage of justice corrigible in a § 2241 proceeding."). Cf. Boumediene v. Bush, 553 U.S. 723, 739 (2008) ("The Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom."). Here, given that Petitioner's sentence exceeds the statutory maximum were he sentenced today, issues of fundamental fairness and the miscarriage of justice found in Brown and Hill are exacerbated. Consequently, Petitioner has satisfied the actual innocence prong for purposes the escape hatch.
B. Merits
The government concedes that if Petitioner is permitted to proceed under the escape hatch, then he "would no longer qualify for ACCA sentencing and should be resentenced." (Response at 16; see also id. at 17 (conceding that pursuant to Descamps and Mathis, Petitioner's "second degree burglary convictions no longer currently qualify as violent felonies pursuant to 18 U.S.C. § 924(e)(2)(b)(ii). As such, without application of the second degree burglary convictions, the Defendant would not qualify for the statutory ACCA sentencing enhancement if he was sentenced today.") (emphasis omitted)). Thus, Petitioner prevails on the merits of his Petition.
C. Relief
Petitioner urges the Court to "grant his habeas petition, order him released from custody forthwith, and direct the sentencing court to conduct further proceedings consistent with a sentence imposed without the ACCA increase." (Reply at 13). Transferring the matter to the sentencing court for resentencing is consistent with the procedure followed by the District of Oregon in Summers when relief was granted under the escape hatch. See Summers, 119 F.Supp.3d at 1284 (denying Petitioner's request for "'immediate conditional relief'" because "[u]nder the guidelines it is not clear what is 'required' in this case. It is not within the province of this court to determine what a petitioner's sentence would be without the invalid enhancement."). Petitioner's request that the matter be returned to the sentencing court should be granted. However, should the District Court determine, upon the filing of any objections to this Report and Recommendation, that Petitioner is entitled to immediate release, it appears that the District Court may correct Petitioner's sentence forthwith and order immediate release. See e.g., Terry, No. CV 15-107-TUC-CKJ (D. Ariz.) (December 6, 2017 Order (Doc. 68 at 1-2))
D. Motion for Release During Pendency of Habeas Proceedings
Petitioner, stressing that he has "overserved the statutory non-ACCA maximum sentence of 10 years...", requests release on bail during resolution of his Petition. (Motion for Release at 1). The government opposes Petitioner's request because Petitioner has failed to demonstrate a high probability of success on the merits. (Response to Motion, at 2).
The parties acknowledge that the Ninth Circuit has not resolved whether a district court has authority to grant bail pending resolution of a habeas petition. (Motion at 1 (citing United States v. McCandless, 841 F.3d 819, 822 (9th Cir. 2016); Response to Motion at 1 (citing same)). The McCandless court has posited, hypothetically, that "[i]f district courts have that authority [to grant bail pending resolution of a habeas petition], we have indicated that it is reserved for extraordinary cases involving special circumstances or a high probability of success." Id. (internal quotation marks and citation omitted). Based on the Court's analysis set out above, it appears that Petitioner has a high probability of success on the merits to warrant resentencing; however as discussed above, the sentencing court should determine whether Petitioner is entitled to immediate release.
IV. Conclusion
For the foregoing reasons, Petitioner has established that he is entitled to relief under the escape hatch provision of 28 U.S.C. § 2255(e). Accordingly, Petitioner's Petition for a Writ of Habeas Corpus filed under 28 U.S.C. § 2241 should be granted and this matter should be returned to the sentencing court for resentencing. Because the sentencing court is in the best position to determine whether Petitioner should be entitled to immediate release, Petitioner's Motion for Release During Pendency of Habeas Proceeding should be denied without prejudice.
V. Recommendation
The Magistrate Judge recommends that the District Court, after its independent review, grant Petitioner's Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241. (Doc. 1), to the extent that this matter should be returned to the United States District Court for the Eastern District of Washington for resentencing. The Magistrate Judge further recommends that the District Court deny Petitioner's Motion for Release During Pendency of Habeas Proceeding (Doc. 34) without prejudice.
Pursuant to 28 U.S.C. §636(b) and Rule 72(b)(2) of the Federal Rules of Civil Procedure and LRCiv 7.2(e), Rules of Practice of the U.S. District Court for the District of Arizona, any party may serve and file written objections within FOURTEEN (14) DAYS after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within FOURTEEN (14) DAYS after being served with a copy. Fed.R.Civ.P. 72(b)(2). No replies to objections shall be filed unless leave is granted from the District Court to do so. If objections are filed, the parties should use the following case number: CV 17-18-TUC-JAS.
Failure to file timely objections to any factual or legal determination of the Magistrate Judge may be deemed a waiver of the party's right to review.
Dated this 5th day of January, 2018.
/s/_________
Bernardo P. Velasco
United States Magistrate Judge