Opinion
Case No. 3:09-cr-00215-AA Case No. 3:16-cv-01273-AA
01-31-2018
UNITED STATES OF AMERICA, Plaintiff, v. JOHNATHAN DARRELL SINGLETON, Defendant.
OPINION AND ORDER
:
In 2009, defendant Johnathan Darrell Singleton pleaded guilty to bank robbery. He was sentenced to 151 months' imprisonment, to be followed by three years' supervised release. The Court based that sentence, in part, on the parties' stipulation that defendant was a career offender under the United States Sentencing Guidelines ("the Guidelines"). Defendant's career offender designation rested on a determination that his prior convictions under Oregon law—for Assault II, Robbery III, and Burglary I—were crimes of violence within the meaning of a provision of the Guidelines known as the residual clause. The career offender designation substantially increased defendant's advisory Guidelines range. With the career offender designation, the range was 151 to 188 months; without the designation, the range would have dropped to 70 to 87 months.
"Residual clause" refers to the fact that the provision is the last, catch-all part of the Guidelines' definition of "crime of violence." See, e.g., United States v. Lee, 821 F.3d 1124, 1126 (9th Cir. 2016). --------
The Armed Career Criminal Act ("ACCA") also contains a residual clause. Johnson v. United States, 135 S. Ct. 2551, 2555-56 (2015). On June 26, 2015, the Supreme Court held that the ACCA's residual clause was unconstitutionally vague. Id. at 2557. Within a year of that decision, defendant—like many other incarcerated individuals in this district and across the nation—filed a motion to vacate or correct his sentence under 28 U.S.C. § 2255. In his initial motion, defendant argued that Johnson's holding logically extended to the Guidelines' textually-identical residual clause. He contended that his sentence had been imposed in violation of the Due Process Clause because, without the residual clause, his prior convictions for robbery and burglary would not have qualified as predicate offenses and his Guidelines range would not have been enhanced by the career offender designation. In March 2017, the Supreme Court held that the advisory Guidelines are immune to vagueness challenges. See Beckles v. United States, 137 S. Ct. 886, 897 (2017). After Beckles, the arguments defendant initially advanced in support of his 2255 motion could not succeed.
Following Beckles, defendant filed a supplemental memorandum in support of his 2255 motion. In that memorandum, he pivoted to a new argument: that, in view of the Supreme Court's announcement that the ACCA's residual clause is "a black hole of confusion and uncertainty that frustrates any effort to impart some sense of order and direction[,]" Johnson, 135 S. Ct. at 2562 (internal quotation marks omitted), use of the Guidelines' residual clause to nearly double his advisory Guidelines range resulted in a sentence that is disproportionately and arbitrarily harsh, in violation of the Fifth and Eighth Amendments.
The government does not respond to the merits of defendant's supplemental brief. Instead, it contends that this Court lacks jurisdiction to consider those arguments because defendant's 2255 motion is untimely.
Motions under 28 U.S.C. § 2255 are subject to a one-year limitations period. That period runs from the latest of:
(1) the date on which the judgment of conviction becomes final;28 U.S.C. § 2255(f). Neither subsection (2) nor (4) is at issue here, and defendant's judgment of conviction became final eight years ago. Accordingly, the parties agree that the petition is untimely unless subsection (3) applies. They further agree that in order for that subsection to apply, the right defendant asserts in his 2255 motion must be the same right the Supreme Court "newly recognized" in Johnson and "made retroactively applicable" on collateral review in Welch v. United States, 136 S. Ct. 1257 (2016).
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
The Ninth Circuit has not established a test for determining the scope of a newly recognized right for the purposes of § 2255(f)(3). In a recent District of Oregon decision, Judge McShane thoroughly reviewed the case law on this question. See United States v. Patrick, 2017 WL 4683929, *3 (D. Or. Oct. 18, 2017). In Patrick, the defendant had been sentenced before the Supreme Court decided United States v. Booker, 543 U.S. 220 (2005). In his 2255 motion, the defendant argued that although Beckles foreclosed relief on vagueness grounds for those sentenced according to the advisory (post-Booker) Guidelines, Johnson recognized a right applicable in mandatory Guidelines cases. The government responded that the petition was untimely because, although Johnson might have laid the foundation for an argument regarding the mandatory Guidelines, it did not recognize a right applicable in mandatory Guidelines cases.
In Patrick, Judge McShane found that most courts use one of two methods to identify the scope of the right recognized in a particular Supreme Court case. Some courts limit the newly recognized right to the "narrow rule announced" in the case, i.e., the holding. 2017 WL 4683929 at *3. Other courts take a broader approach, wherein the newly recognized right flows from "the principles announced in a Supreme Court case" and is more analogous to the decision's reasoning. Id (emphasis omitted). Patrick also discussed a "potential third approach to defining what qualifies as a newly recognized right." 2017 WL 4683929 at *5. That approach—which defendant here also employs—is to define the phrase "newly recognized right" to mean the same thing as "new rule" under the retroactivity analysis of Teague v. Lane, 489 U.S. 288 (1989). Id. That would mean that a right asserted in a 2255 petition is the same right newly recognized in a Supreme Court decision if that decision requires the district court to grant the motion. See Ezell v. United States, 778 F.3d 762, 766 (9th Cir. 2015) (stating that a case recognizes a new rule for Teague purposes if the result is "not dictated by precedent") (emphasis omitted). Judge McShane adopted the first, narrow approach and denied the defendant's motion. Id. at *4.
I find it unnecessary to decide which approach is correct because, in this case, defendant's motion is untimely under all three approaches. It is clearest that defendant's motion must be dismissed under the first approach because defendant asserts a right different than the narrow right announced in Johnson's holding, which concerned the ACCA's residual clause and the vagueness doctrine. Application of the third approach does not present a very difficult question, either. Johnson did not discuss the Eighth Amendment, the advisory Guidelines, or how either one might interact with the Fifth Amendment's general prohibition on disproportionate or arbitrary punishments. Johnson's statements about the hopeless indeterminacy of the residual clause establish a solid starting point for the merits of defendant's arguments, but I cannot conclude that Johnson would require me to grant defendant's motion; there are simply too many logical leaps between Johnson and the result defendant seeks. Granting defendant's motion would require more than a "garden variety" application of Johnson, which means a Supreme Court decision accepting defendant's argument would announce a "new rule" within the meaning of Teague. Chaidez v. United States, 568 U.S. 342, 347 (2013).
The closest call comes from application of the second option. Chief Judge Gregory of the Fourth Circuit outlined that reasoning-based approach to defining "right newly recognized" in his dissent in United States v. Brown, 868 F.3d 297 (4th Cir. 2017). Judge Gregory explained that he would reject a reading of § 2255(f)(3) that would limit the right recognized in a Supreme Court case to the "four corners" of that case's "narrow holding." Id. at 304 (Gregory, J., dissenting). Instead, Judge Gregory urged a more expansive approach, which understands "newly recognized right . . . to include the reasoning and principles that explain it." Id. Judge Gregory posited that the right newly recognized by Johnson was "a defendant's right not to have his or her sentence fixed by the application of the categorical approach to an imprecise and indeterminate sentencing provision[.]" Id. Even Judge Gregory, however, tied that right to the Due Process Clause's prohibition on vague statutes that fix sentences. See id. at 308 ("The Beckles Court thus excluded from the scope of Johnson's rule those sentencing provisions that advise, but do not bind, a sentencing court."); id. at 310 (asserting that the right newly recognized in Johnson "clearly stems from the due process protections that prohibit such sentencing schemes"). To grant defendant's motion here would require going several steps beyond even the broader right articulated by Judge Gregory: I would have to apply Johnson's reasoning in a new factual context (the advisory sentencing Guidelines) and a new legal context (a hybrid Eighth/Fifth Amendment claim). Whether or not defendant's argument would succeed on the merits, it is not based on an assertion of the same right identified by the Court in Johnson. The few federal cases to address post-Beckles Johnson claims predicated on the Fifth and/or Eighth Amendments have reached this same conclusion. See United States v. Slattery, 2017 WL 4581790, *4 (D. Or. Oct. 13, 2017) ("Johnson's characterization of the residual clause as uninterpretable was not itself a new rule of constitutional law that creates a due process right independent of Johnson's void-for-vagueness rule."); Norwood v. United States, 2017 WL 1130029, *2 (W.D. Mich. Mar. 27, 2017) (holding that an Eighth Amendment challenge to a career offender-enhanced Guidelines sentence "is not a true Johnson claim" but rather "an attempt to get around the statute of limitations by citing Johnson"), aff'd, 2017 WL 4404632 (6th Cir. July 3, 2017) ("Norwood did not make a sufficient showing that his [Eighth Amendment] claims actually relied on Johnson," rendering his petition untimely under 2255).
For the reasons stated above, the government's motion to dismiss (doc. 39) is GRANTED and petitioner's 2255 petition (doc. 25) is DISMISSED. However, I find that reasonable jurists could debate whether "the petition should have been resolved in a different manner." Slack v. McDaniel, 529 U.S. 473, 484 (2000). I therefore grant a certificate of appealability on the issue of whether defendant's motion falls within the scope of 28 U.S.C. § 2255(f)(3).
IT IS SO ORDERED.
Dated this 31ST day of January 2018.
/s/_________
Ann Aiken
United States District Judge