Opinion
NO: 1:14-CR-2007-TOR
02-03-2015
UNITED STATES OF AMERICA, Plaintiff, v. ANTHONY RAY HAMMER, Defendant.
ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255
BEFORE THE COURT is Defendant's Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 (ECF No. 43). Defendant is proceeding pro se. Assistant United States Attorney Shawn N. Anderson represents the United States. The Court has reviewed the record and files herein, and is fully informed. For the reasons discussed below, the Court denies Defendant's Motion.
BACKGROUND
On June 7, 2013, Defendant Anthony Ray Hammer was arrested in Selah, Washington following a report that he discharged a firearm at another person. The Selah Police Department, in its search incident to Defendant's arrest, found a Beretta 92 FS 9 mm semi-automatic pistol in Defendant's waistband, which contained 12 rounds of ammunition. The Bureau of Alcohol, Tobacco, Firearms, and Explosives determined that the firearm and ammunition were manufactured outside of the State of Washington and thus had previously traveled in or affected interstate and/or foreign commerce. At the time of the incident, Defendant had four prior felony convictions, all under Wash. Rev. Code § 46.61.024. Following his arrest and receipt of Miranda warnings, Defendant told the police he knew he was not allowed to possess a gun.
Attempt to Elude, Yakima County Superior Court, No. 97-1-01891-4; Attempt to Elude, Yakima County Superior Court, No. 00-1-01751-6; Attempt to Elude, Yakima County Superior Court, No. 03-1-00834-1; Attempt to Elude, Yakima County Superior Court, No. 08-1-02440-2.
In January 2014, the United States filed a Complaint, and shortly thereafter an Indictment, with this Court, charging Defendant with Felon in Possession of Firearm, 18 U.S.C. § 922(g)(1). On February 11, 2014, a Grand Jury returned a Superseding Indictment against Defendant, charging him with Possession of a Firearm and Ammunition by a Prohibited Person in violation of 18 U.S.C. §§ 922(g)(1) and 924(e).
Defendant entered into a written plea agreement and pled guilty to this charge on March 12, 2014, pursuant to Fed. R. Crim. P. 11(c)(1)(C). ECF No. 32. In his plea agreement, Defendant acknowledged that he had been previously convicted of four felony offenses in Washington and was subject to the statutory penalties under the Armed Career Criminal Act ("ACCA"). The statutory penalties under the ACCA included a term of imprisonment of not less than fifteen years and a maximum of life.
The presentence investigation report, which also documented Defendant's prior felony convictions, calculated a guideline sentencing range of 168 to 210 months, subject to a statutory mandatory minimum of 180 months of imprisonment. ECF No. 37.
--------
This Court sentenced Defendant on June 24, 2014. ECF No. 41. The Court imposed a 180-month term of imprisonment, 3 years of supervised release, a $1,000 fine, and a $100 special assessment, which was consistent with the parties' Rule 11(c)(1)(C) agreement. Id. By accepting the plea agreement, Defendant waived all rights to appeal, including his right to file any post-conviction motion attacking his conviction and sentence. ECF No. 32 at 11. Specifically, Defendant waived the right to bring motions pursuant to 28 U.S.C. § 2255, "except one based upon ineffective assistance of counsel based on information not then known by Defendant and which, in the exercise of due diligence, could not be known by Defendant by the time the Court imposes the sentence." Id.
In the instant motion, Defendant moves to vacate, set aside, or correct his sentence based on a claim of ineffective assistance of counsel. ECF No. 43.
DISCUSSION
A. Motion to Vacate
A defendant in criminal proceedings has a constitutional right to effective assistance of counsel. U.S. Const. amend. VI. A convicted defendant asserting violation of his constitutional right to effective assistance of counsel must demonstrate the following: (1) "that counsel's representation fell below an objective standard of reasonableness ," and (2) "that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Kimmelman v. Morrison, 477 U.S. 365, 374, 375 (1986) (citing Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)). To satisfy this standard, a defendant must show that counsel's representation was "outside the wide range of professionally competent assistance" and that there is a "probability sufficient to undermine confidence in the outcome." Hart v. Gomez, 174 F.3d 1067, 1069 (9th Cir. 1999). "Judicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 at 689.
Defendant moves the Court to set aside or correct his conviction based on a claim of ineffective assistance of counsel. According to Defendant, counsel informed Defendant he would be facing a term of imprisonment ranging from 15 years to life under the ACCA but would get a life sentence when convicted if he did not enter into the plea agreement. ECF No. 43-1 at 4. Defendant contends that his sentence should not be subject to the ACCA. Id. at 6. Specifically, Defendant contends three of his four prior convictions were under the pre-2003 version of Washington's Attempting to Elude Police statute, Wash. Rev. Code § 46.61.024, and thus do not meet the definition of a "violent felony" under the ACCA. ECF No. 46 at 1 (citing United States v. Jennings, 515 F.3d 980 (9th Cir. 2008)). As such, Defendant asserts his counsel's representation fell below the standard of reasonableness when she advised Defendant to "take the deal" sentencing him to 15 years in federal prison even though the maximum sentence without application of the ACCA would be 10 years. Id. at 5-6.
1. Waiver of Right to Appeal
As an initial matter, this Court finds Defendant waived his right to file the instant motion. Although Defendant bases his motion on a claim of ineffective assistance of counsel, his motion provides no information that was not available to Defendant before his sentencing. The exception to waiver contained in his plea agreement only includes motions based upon ineffective counsel "based on information not then known by Defendant and which, in the exercise of due diligence, could not be known by Defendant by the time the Court imposed the sentence." ECF No. 32 at 11 (emphasis added). Both the plea agreement and presentence investigation report put Defendant on notice of the significance of his prior felony convictions, and he acknowledged the impact of these prior convictions before the Court imposed his current sentence. Therefore, the Court finds Defendant waived the right to file this appeal.
2. Violent Felony Under the ACCA
Even considering the substance of Defendant's motion proves futile in light of the Supreme Court's recent opinion in Sykes v. United States, 131 S. Ct. 2267 (2011). Although Defendant relies on United State v. Jennings, 515 F.3d 980 (9th Cir. 2008), to assert that his prior convictions—three of which were under the previous version of Washington's Attempting to Elude statute—were not violent felonies under the ACCA, this Court is bound by the Supreme Court's reasoning in Sykes.
The ACCA defines a violent felony as "any crime punishable by imprisonment for a term exceeding one year . . . that (i) has as an element of use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, . . . or otherwise involves conduct that presents a serious potential risk of physical injury to the person of another." 18 U.S.C. § 924(e)(2)(B) (emphasis added). If the ACCA does not apply, the ordinary maximum sentence for a convicted felon in unlawful possession of a firearm is 10 years of imprisonment. Id. § 924(a)(2). However, if the ACCA does apply—that is, the defendant has three prior "violent felony" convictions—an armed defendant is subject to the 15-year mandatory minimum prison term imposed by the Act. Id. § 924(e).
The Ninth Circuit, in United States v. Jennings, analyzed whether a conviction under the pre-2003 version of Washington's Attempting to Elude statute should be characterized as a violent felony under the catchall portion of the ACCA's definition. 515 F.3d 980. Washington's pre-2003 version of the statute read as follows:
Any driver of a motor vehicle who willfully fails or refuses to immediately bring his vehicle to a stop and who drives his vehicle in a manner indicating a wanton or willful disregard for the lives or property of others while attempting to elude a pursuing police vehicle, after being give a visual or audible signal to bring the vehicle to a stop, shall be guilt of a class C felony.Wash. Rev. Code § 46.61.024 (2002). The Ninth Circuit concluded that a conviction under this statute does not constitute a violent felony under the ACCA because the statute does not require proof of any actual or potential risk of harm to another for conviction: "Washington's attempting to elude a pursuing police vehicle statute 'is missing an element of the generic crime'—here, the actual or potential risk of harm to another—'altogether.'" Jennings, 515 F.3d at 993 (quoting Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073 (9th Cir. 2007)). Because a perpetrator could be convicted under the Washington statute for conduct that "indicat[es] a wanton disregard for the . . . property of others," that is, conduct that does not present a potential risk of harm to the lives of others, the Ninth Circuit declined to categorize a conviction under the statute as a violent felony. See id. at 989 n.9.
The Washington legislature subsequently amended Wash. Rev. Code § 46.61.024 in 2003. The current version reads as follows:
Any driver of a motor vehicle who willfully fails or refuses to immediately bring his or her vehicle to a stop and who drives his or her vehicle in a reckless manner while attempting to elude a pursuing police vehicle, after being given a visual or audible signal to bring the vehicle to a stop, shall be guilty of a class C felony.Wash. Rev. Code § 46.61.024 (2010) (omitting previous language requiring proof of "a wanton or wilful disregard for the lives or property of others").
Neither Washington's pre-2003 statute, nor its current version have any of the elements set forth in 18 U.S.C. § 924(e)(2)(B)(i), nor is it one of the crimes enumerated in section 924(e)(2)(B)(ii). Accordingly, the issue is whether both versions of the statute satisfy the ACCA's catchall definition of violent felony under section 924(e)(2)(B)(ii), which characterizes conduct "that presents a serious potential risk of physical injury to the person of another" as a violent felony. Although the Ninth Circuit directly addressed this issue with regards to the pre-2003 version of the statute, its decision in Jennings was without the benefit of the Supreme Court's reasoning in Sykes v. United States, 131 S.Ct. 2267 (2011)—controlling precedent to which this Court is bound.
In Sykes, the Supreme Court analyzed whether Indiana's Resisting Law Enforcement statute constituted a violent felony for purposes of the ACCA. 131 S.Ct. 2267. In granting certiorari, the Court aimed to settle a circuit split, which included the tension created by the Ninth Circuit's opinion in Jennings, regarding whether vehicle flight is a violent felony under the ACCA. Id. at 2272. Under Indiana law, the following conduct constitutes violation of the vehicle flight statute:
(a) A person who knowingly or intentionally . . . (3) flees from a law enforcement officer after the officer has, by visible or audible means, identified himself and ordered the person to stop; commits resisting law enforcement, a Class A misdemeanor, except as provided in subsection (b).Ind. Code. § 35-44-3-3 (2004). The Supreme Court concluded that because vehicle flight, as defined in Indiana's statute, "presents a serious potential risk of physical injury to another," it is a violent felony for purposes of the ACCA. Id. at 2273, 2277. The Court discussed the inherent risk of injury presented when a perpetrator attempts to elude a pursuing officer, determining that such conduct posed a serious potential risk of injury:
(b) The offense under subsection (a) is a: (1) Class D felony if: (A) the offense is described in subsection (a)(3) and the person uses a vehicle to commit the offense; or (B) while committing any offense described in subsection (a), the person draws or uses a deadly weapon, inflicts bodily injury on another person, or operates a vehicle in a manner that creates a substantial risk of bodily injury to another person.
When a perpetrator defies a law enforcement command by fleeing in a car, the determination to elude capture makes a lack of concern for the safety of property and persons of pedestrians and other drivers an inherent part of the offense. Even if the criminal attempting to elude capture drives without going at full speed or going the wrong way, he creates the possibility that police will, in a legitimate and lawful manner, exceed or almost match his speed or use force to bring him within their custody. A perpetrator's indifference to these collateral consequences has violent—even lethal—potential for others.Id. at 2273. The Court's acknowledgement of the "collateral consequences" of vehicle flight encompassed not only the danger posed to property, pedestrians, and other drivers, but also the danger posed to police officers pursuing the fleeing perpetrator. Id. at 2273-74.
The attempt to elude capture is a direct challenge to an officer's authority. It is a provocative and dangerous act that dares, and in a typical case requires, the officer to give chase. The felon's conduct gives the officer reason to believe that the defendant has something more serious than a traffic violation to hide. . . . Because an accepted way to restrain a driver who poses dangers to others is through seizure, officers pursuing fleeing drivers may deem themselves duty bound to escalate their response to ensure the felon is apprehended . . . And once the pursued vehicle is stopped, it is sometimes necessary for officers to approach with guns drawn to effect arrest. Confrontation with police is the expected result of vehicle flight. It places property and persons at serious risk of injury.Id. (emphasis added) (citation omitted). The Supreme Court went on to compare the risk of violence associated with vehicle flight to that of burglary and arson, noting that both burglary and arson—crimes enumerated under the ACCA's violent felony definition—pose less statistical risk than vehicle pursuits. Id. at 2274-75. Accordingly, the Court concluded that vehicle flight is properly characterized as a violent felony under the ACCA's residual clause. Id. at 2277.
The Supreme Court's reasoning in Sykes, when applied to both the pre-2003 and current versions of Washington's Attempting to Elude statute, commands but one conclusion: attempting to elude a police officer in violation of Wash. Rev. Code § 46.61.024 is a violent felony under the ACCA because of the serious risk posed not only to pedestrians and other drivers, but also to pursuing police officers who may engage in a violent confrontation with the fleeing perpetrator. Although the Court in Jennings envisioned a conviction under the pre-2003 statute which would pose a risk of harm only to property, not the life of another, 515 F.3d at 989 n. 9, the Supreme Court in Sykes emphasized the risk of serious injury a typical incident of vehicle flight not only poses to property, pedestrians, other drivers, but also pursuing police officers, 131 S.Ct. at 2273-74. Washington's pre-2003 Attempting to Elude statute, as well as its current version and the Indiana statute analyzed in Sykes, all expressly include this element of "elud[ing]" or "flee[ing]" from law enforcement, which the Supreme Court determined presents the risk of violent confrontation and thus serious potential risk of injury to another. Indeed, the Supreme Court's decision in United States v. James, 550 U.S. 192 (2007), cited in Sykes, reasoned that "the proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another," not whether there's a "metaphysical certainty" that someone will be injured. Id. at 207-08 (emphasis added). "As long as an offense is of a type that, by its nature, presents a serious potential risk of injury to another, it satisfies the requirements of § 924(e)(2)(B)(ii)'s residual provision." Id. at 209.
The Tenth Circuit, in line with the Supreme Court's reasoning in Sykes, concluded that a conviction under the current version of Wash. Rev. Code. § 46.61.024 constitutes a violent felony under the ACCA's residual clause. United State v. Denson, 488 Fed. App'x 314, 320-21 (10th Cir. 2012) (discussing the danger vehicle flight poses to the safety of property, pedestrians, other drivers, as well as the pursuing police officers). Although the Ninth Circuit has not yet expressed its view on whether the current version of Washington's Attempting to Elude statute constitutes a violent felony under the ACCA, its recent line of cases following Sykes suggests that it would reach the same conclusion as that of the Tenth Circuit. See United States v. Martinez, 771 F.3d 672 (9th Cir. 2014) (holding that a conviction for vehicle flight from a pursuing officer under California Vehicle Code § 2800.2 constitutes a violent felony under the ACCA's residual clause); United State v. Snyder, 643 F.3d 694 (9th Cir. 2011) (holding that a conviction for felony attempt to elude police under Oregon Revised Statute § 811.540(1) constitutes a violent felony under the ACCA's residual clause). Indeed, the most recent Ninth Circuit opinion discussing the definition of violent felony under the ACCA highlighted the reasoning in Sykes that "vehicle flight from police inherently poses a serious potential risk to the safety of pedestrians and other drivers, as well as a risk of violent confrontation with police." Martinez, 771 F.3d at 676 (emphasis added).
At the time of Defendant's sentencing, he had four prior convictions of Attempting to Elude Pursuing Police Vehicle under Washington State law, three of which were under the pre-2003 version of the statute. Pursuant to the Supreme Court's reasoning in Sykes, as well as recent Ninth and Tenth Circuit opinions following Sykes, each of these prior convictions qualifies as a violent felony under the ACCA. By attempting to elude pursuing officers in violation of Wash. Rev. Code. § 46.61.024, Defendant's conduct "present[ed] a serious potential risk of physical injury to the person of another." Even under the previous version of the statute, the risk of serious physical injury to the pursuing officer—a risk posed by the nature of the offense, see James, 550 U.S. at 207-08—is sufficient to bring Defendant's convictions within the reach of the ACCA's definition of violent felony. Thus, because all four of Defendant's prior convictions under Wash. Rev. Code § 46.61.024 presented a serious risk of injury to the pursuing police officer—if not also a serious risk of injury to pedestrians and other drivers—they are all properly categorized as violent felonies under the ACCA.
Accordingly, Defendant's four prior convictions were properly characterized as violent felonies under the ACCA in his Presentence Investigation Report and plea agreement, and the ultimate sentence imposed was appropriate given the ACCA's mandatory statutory term of imprisonment. Consequently, defense counsel's advisement that Defendant accept the plea agreement, which provided a sentence in line with the ACCA's minimum mandatory 15-year prison term, did not fall "outside the wide range of professionally competent assistance," nor is there a "probability sufficient to undermine confidence" in the ultimate sentence imposed. See Hart v. Gomez, 174 at 1069. Accordingly, because Defendant has failed to demonstrate ineffective assistance of counsel, his Motion (ECF No. 43) is DENIED.
B. Certificate of Appealability
A petitioner seeking post-conviction relief may appeal a district court's dismissal of the court's final order in a proceeding under 28 U.S.C. § 2255 only after obtaining a certificate of appealability ("COA") from a district or circuit judge. 28 U.S.C. § 2253(c)(1)(B). A COA may issue only where the applicant has made "a substantial showing of the denial of a constitutional right." See id. § 2253(c)(2). To satisfy this standard, the applicant must "show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotation marks and citation omitted).
The Court concludes that Defendant is not entitled to a COA because he has not demonstrated that jurists of reason could disagree with the Court's resolution of his constitutional claim or conclude the issue presented deserves encouragement to proceed further. ACCORDINGLY, IT IS HEREBY ORDERED:
Defendant's Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 (ECF No. 43) is DENIED.
The District Court Executive is hereby directed to enter this Order and furnish copies to the parties. The Court further certifies that there is no basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). This file and the corresponding civil file shall be CLOSED.
DATED February 3, 2015.
/s/
THOMAS O. RICE
United States District Judge