Opinion
CV-16-01839-PHX-SMM (DMF) CR-97-00176-PHX-SMM
01-20-2022
James Wade Arnold, Movant, v. United States of America, Respondent.
REPORT AND RECOMMENDATION
Honorable Deborah M. Fine United States Magistrate Judge
TO THE HONORABLE STEPHEN M. MCNAMEE, SENIOR UNITED STATES DISTRICT JUDGE:
On June 9, 2016, James Wade Arnold (“Movant” or “Arnold”) filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255, or in the Alternative, Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (“Motion”). (Doc. 1)Movant argued that his mandatory life sentence for bank robbery pursuant to the federal “three strikes” provision in 18 U.S.C. § 3559(c), his mandatory consecutive 25-year sentence under 18 U.S.C. § 924(c) for possession of a firearm during a bank robbery, and his designation as a career offender under U.S.S.G. § 4B1.1 were rendered unconstitutional by the Supreme Court in Johnson v. United States, 576 U.S. 591 (2015). (Doc. 1 at 1) Movant contended that while Johnson expressly held that the residual clause in 18 U.S.C. § 924(e) was unconstitutionally vague, the decision's reasoning applied equally to the residual clauses in 18 U.S.C. §§ 924(c) and 3559(c) and in U.S.S.G. § 4B1.1. (Id.)
Citations to the record indicate documents as displayed in the official electronic document filing system maintained by the District of Arizona under Case Number CV-16-01839-PHX-SMM (DMF).
Respondent moved for a stay of the proceedings pending the outcome of the Supreme Court cases in Beckles v. United States, __ U.S. __, 137 S.Ct. 886 (2017) and Sessions v. Dimaya, __ U.S. __, 138 S.Ct. 1204 (2018), asserting these matters addressed questions directly bearing on issues raised in the Motion. (Doc. 4) After Beckles was decided in March 2017, a stay was issued granting Respondent until after Dimaya was resolved to file a response. (Doc. 22) Respondent filed its response in July 2018 (Doc. 32), Movant filed his reply (Doc. 37), and in September 2018 the parties provided additional argument on the Ninth Circuit's opinion in United States v. Blackstone, 903 F.3d 1020 (9th Cir. 2018), cert. denied, 139 S.Ct. 2762 (2019). (Docs. 38, 39)
On February 15, 2019, undersigned filed a Report and Recommendation recommending that the Motion be denied and dismissed with prejudice as untimely under 28 U.S.C. § 2255(f), but also recommended that a certificate of appealability be granted because the Ninth Circuit's opinion in Blackstone was not final. (Doc. 41) On March 25, 2019, the Court adopted the Report and Recommendation, denied and dismissed the Motion with prejudice, and granted a certificate of appealability. (Doc. 45) Movant filed a notice of appeal to the Ninth Circuit. (Doc. 48)
The Ninth Circuit granted the parties' joint motion to vacate the Court's order dismissing the Motion as untimely and remanded for “consideration on the merits, in light of Respondent's deliberate waiver of a timeliness defense” pursuant to Wood v. Milyard, 566 U.S. 463, 466 (2012). (Doc. 50-1 at 1) In December 2020, the Court referred this matter to the undersigned for a Report and Recommendation consistent with the Ninth Circuit's mandate. (Doc. 51) Undersigned ordered the parties to file supplemental briefing on the merits of the Motion addressing, at a minimum, the effects of the Supreme Court's decision in United States v. Davis, __ U.S. __, 139 S.Ct. 2319 (2019) on the Motion, including the impact of Davis on the Ninth Circuit's decision in Blackstone. (Doc. 52)
The parties' Joint Motion to Remand explained that after the Court dismissed Movant's § 2255 Motion on procedural grounds as time-barred pursuant to Blackstone, and after Movant filed his appeal with the Ninth Circuit, the Supreme Court decided United States v. Davis, 139 S.Ct. 2319 (2019), which held that the residual clause of 18 U.S.C. § 924(c)(3)(B) was unconstitutionally vague. (9th Cir. Case No. 19-15840, Docket Entry No. 21) The parties stated that Respondent wished to waive the timeliness bar so that Movant could avoid having to “file a new habeas petition within one year of the Davis decision” and asked the Ninth Circuit “to accept [Respondent's] waiver, vacate the district court order ..., and remand for consideration of the merits of the habeas motion petitioner filed before Davis ... . (Id. at 5)
Movant filed through counsel his Supplemental Brief on Remand on February 22, 2021. (Doc. 53) After obtaining extensions of time, Respondent filed its Response to Movant's Supplemental Brief on Remand on September 29, 2021. (Doc. 64) Movant filed his Reply on October 6, 2021. (Doc. 65)
This matter is on referral to undersigned pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a report and recommendation. (Doc. 3 at 3) For the reasons set forth below, the undersigned Magistrate Judge recommends the Court grant the Motion in part and deny it in part without an evidentiary hearing as is set forth below.
I. BACKGROUND
A. Factual Background
In 1998, Movant was convicted of two counts of bank robbery in violation of 18 U.S.C. § 2113(a), and two counts of use of a firearm in a crime of violence (bank robbery) in violation of 18 U.S.C. § 924(c). United States v. Arnold, 182 F.3d 928 (9th Cir. 1999) (unpublished). A superseding indictment had charged Movant in Count 1 with bank robbery and taking “by force, violence and intimidation . . . from the persons and presence” of four individual tellers “approximately $16,414.00” in a Bank of America branch in Phoenix, Arizona on April 18, 1997, in violation of 18 U.S.C. § 2113(a). (Doc. 32-1 at 4) Count 2 charged that during the crime charged in Count 1, Movant “did use and carry a firearm, a pistol, during and in relation to a crime of violence” in violation of 18 U.S.C. § 924(c). (Id.) The indictment employed the same language to charge Movant in Count 3 with taking approximately $6,004.00 from two tellers in a Bank One branch in a different area of Phoenix, Arizona on April 17, 1997, also in violation of 18 U.S.C. § 2113(a). (Id. at 5) Movant was charged in Count 4 with using and carrying “a firearm, a pistol, during and in relation to a crime of violence” during the bank robbery charged in Count 3 in violation of § 924(c). (Id.)
Respondent filed an information on June 10, 1997, in which it declared that if Movant were convicted of the charges, Respondent intended to use two prior convictions to enhance Movant's sentence “to mandatory life imprisonment pursuant to Title 18, United States Code, Section 3559(c), (A)(i), (c)(2)(F) and (G), and (c)(4).” (Id. at 2) Respondent identified the prior convictions as a state conviction for second degree murder on February 19, 1976, and a federal conviction for armed bank robbery on October 4, 1993. (Id.)
Movant was convicted after a jury trial on all four counts. Arnold, 182 F.3d at 928. The Court sentenced Movant to a mandatory life sentence under the “three strikes” provision of 18 U.S.C. § 3559(c) and to a mandatory consecutive 25-year sentence under 18 U.S.C. § 924(c); further, Movant was designated as a career offender under Section 4B1.1 of the United States Sentencing Guidelines (“U.S.S.G.”) based on the 1997 offenses of bank robbery and Movant's prior convictions for federal bank robbery and state second degree murder. (Doc. 1 at 2-3, Doc. 32 at 3-4) Movant filed a direct appeal of his convictions, arguing the Court committed error on evidentiary grounds. Arnold, 182 F.3d at 928. The Ninth Circuit affirmed in May 1999. Id.
Movant filed the Motion seventeen years later in June 2016 after the Supreme Court's decision in Johnson. As described above, this matter was stayed or otherwise procedurally extended during the period in which the Supreme Court issued subsequent decisions in Dimaya and Davis.
B. Johnson and subsequent Supreme Court decisions
In Johnson, the Supreme Court considered a vagueness challenge to the “residual clause” of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). Johnson, 576 U.S. at 593. The ACCA provides more severe punishment if a defendant has three prior convictions “for a violent felony or a serious drug offense, or both.” 18 U.S.C. § 924(e). The ACCA definition of “violent felony” includes a “residual clause,” which applies to any crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). The Supreme Court held that the ACCA's “residual clause” was unconstitutionally vague and violated the Due Process Clause because it permitted imposition of an increased sentence without “ fair notice to defendants and invites arbitrary enforcement by judges.” Johnson, 576 U.S. at 597. The Court clarified that its decision did not “call into question . . . the remainder of the ACCA's definition of a violent felony.” Id. at 606. The Supreme Court subsequently held that Johnson could be applied retroactively to cases on collateral review. Welch v. United States, 578 U.S. 120, 129-30 (2016).
The Supreme Court has considered the application of its holding in Johnson in other contexts. In Beckles, the Supreme Court held that “[b]ecause the advisory Sentencing Guidelines are not subject to a due process vagueness challenge, § 4B1.2(a)'s residual clause is not void for vagueness.” 137 S.Ct. at 897. In Dimaya, the Supreme Court applied its holding in Johnson to invalidate the incorporation of the residual clause found within 18 U.S.C. § 16(b) into the Immigration and Nationality Act on the basis that the language pertaining to a crime of violence was unconstitutionally vague. 138 S.Ct. at 1223. Then, in Davis, the Supreme Court held that the residual clause of 18 U.S.C. § 924(c)(3)(B) is also unconstitutionally vague. 139 S.Ct. at 2336.
II. MOVANT'S HABEAS GROUNDS
Movant's Ground 1 is that his life sentence must be vacated because after Johnson, Movant's prior conviction for second degree murder used to enhance his sentence “is not a ‘serious violent felony' because the residual clause of section 3559(c)(2)(F)(ii) is void for vagueness and the Arizona statute does not categorically qualify under the force clauseof section 3559(c)(2)(F)(ii) or as the enumerated offense of ‘murder (as described in section 1111)' under section 3559(c)(2)(F)(i).” (Doc. 1 at 5)
The terms “force clause” and “elements clause” are used interchangeably by courts. See Stokeling v. United States, U.S., 139 S.Ct. 544, 556 (2019) (Sotomayor, J., dissenting). The term “force clause” is employed herein unless the term “elements clause” is contained in quoted material.
Under Ground 2, Movant asserts that his § 924(c) convictions on counts 2 and 4 for use of a firearm in a crime of violence, bank robbery, violate due process of law because after Johnson, bank robbery under § 2113 no longer qualifies as a crime of violence. (Id. at 11-12) Movant argues that he is therefore entitled to correction of his sentence. (Id. at 11)
In Ground 3, Movant asserts his designation as a career offender pursuant to U.S.S.G. § 4B1.1 is improper after Johnson. (Id. at 18) Movant contends that not only is the residual clause of § 4B1.2 void for vagueness, but also that his federal convictions on the offenses of bank robbery and his prior state second degree murder conviction fail to satisfy the force clause or to qualify as an enumerated offense identified in § 4B1.2(a). (Id.)
In his Supplemental Brief on Remand, Movant argues that: “Blackstone is no longer relevant to [Movant's] § 3359(c) and § 924(c) claims because the government has waived the defense of untimeliness[]” (Doc. 53 at 1-3); “[Movant's] § 3559(c) claim warrants relief in light of Davis” (Id. at 3-10); his § 924(c) claim “warrants relief in light of Davis” (Id. at 11-12); and his “mandatory-Guidelines claim warrants relief” pursuant to Allen v. Ives, 950 F.3d 1184 (9th Cir. 2020), reh'g en banc denied, 976 F.3d 863 (9th Cir. 2020). (Id. at 1315).
Respondent concedes that the U.S. Supreme Court's decision in Davis renders the residual clauses in § 3559(c)(2)(F)(ii) and § 924(c)(3)(B) unconstitutionally vague and withdraws its arguments “that rested upon survival of those residual clauses.” (Doc. 64 at 2) However, Respondent asserts that elimination of the residual clauses from sections 3559 and 924(c) does not invalidate Movant's sentence because the residual clauses “did not adversely affect him.” (Id.) Respondent first contends that Movant procedurally defaulted his claims and is unable to establish prejudice to excuse such default. (Id.) Respondent then argues that in any case, Movant's claims lack merit because his “prior conviction for Arizona second-degree murder remains a ‘serious violent felony' under § 3559(c)(2)(F)” and that his federal bank robbery convictions under 18 U.S.C. § 2113(a) are crimes of violence pursuant to § 924(c) and support his convictions. (Id.) Additionally, Respondent argues that “to the extent this Court can consider” Movant's Sentencing Guidelines claim, Movant was “properly sentenced as a career offender under Guidelines § 4B1.1.” (Id.)
In his Reply, Movant argues that any procedural bar is excused by his showing of actual innocence because his prior conviction under § 3559(c) does not qualify as a predicate under retroactively applicable caselaw. (Doc. 65 at 1-2) Similarly, Movant contends he was actually innocent of his conviction pursuant to § 924(c) because his convictions were not categorically “crimes of violence.” (Id. at 2) On the merits, Movant contends that: (1) he does not have two prior “serious violent felony” convictions pursuant to § 3559(c)(2)(F) and that his life sentences should be vacated and he should be resentenced; and (2) because he was not convicted of a “crime of violence” under § 924(c), his two 924(c) convictions should be vacated, and he should be resentenced on his remaining bank robbery convictions. (Id. at 3-8)
III. STANDARD OF REVIEW
A. Section 2255 motion to vacate, set aside, or correct sentence
A federal prisoner is entitled to relief from his sentence if it was “imposed in violation of the United States Constitution or the laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a).
IV. DISCUSSION
A. Movant's Claims Are Excused From Procedural Default
“A § 2255 movant procedurally defaults his claims by not raising them on direct appeal and not showing cause and prejudice or actual innocence in response to the default.” United States v. Ratigan, 351 F.3d 957, 962 (9th Cir. 2003) (citing Bousley v. United States, 523 U.S. 614, 622 (1998)).
In its Response to the Motion, Respondent asserts that Movant's claims are procedurally defaulted because Movant never previously: (1) argued that his prior state conviction for second degree murder did not qualify as a serious violent felony; (2) contended his federal bank robbery convictions pursuant to § 2113 were not crimes of violence and thus were not predicate offenses for his § 924(c) convictions; (3) challenged the constitutionality of Guideline § 4B1.1; (4) argued that either his federal bank robbery convictions or his prior state second degree murder conviction no longer were crimes of violence under either the enumerated offenses clause or the force clause of § 4B1.2(a); or (5) argued he was actually innocent of the aggravated offense resulting from the § 3559(c) enhancement. (Doc. 32 at 13)
Movant counters in his Reply to the Motion that his default is excused by cause and prejudice. (Doc. 37 at 13-16) Movant asserts that he has established cause for default because his Johnson claim was not reasonably available to counsel at the time of his sentencing and direct appeal, and because Johnson overturned established practice in lower courts of imposing punishment under residual clauses. (Id. at 13-15, citing Reed v. Ross, 468 U.S.1, 16, 17 (1984)) Movant states that Johnson's holding that the residual clause of 18 U.S.C. § 924(e) was unconstitutionally vague and thus void explicitly overruled its contrary prior holdings and that a vagueness challenge to similar residual clauses at issue in Movant's case was not a reasonable argument when he was sentenced and when he filed a direct appeal. (Id. at 14) Movant further contends he suffered prejudice because absent application of the residual clause, he would not have been given either a life sentence under § 3559(c) or a career offender Guidelines enhancement. (Id. at 15-16)
Additionally, Movant argues that his procedural default is excused under recent Ninth Circuit caselaw because he is actually innocent of the aggravated crime of bank robbery, based on his argument that his prior Arizona conviction for second degree murder is not a serious violent felony pursuant to § 3559(c). (Id. at 16) Movant asserts that it is “now settled law in this Circuit that a habeas petitioner may be ‘actually innocent' of a noncapital sentence if his prior conviction does not qualify as a predicate under retroactively applicable caselaw.” (Doc. 65 at 1-2 (citing Allen v. Ives, 950 F.3d 1184, 1192 (9th Cir.)))
In its response to Movant's argument in his supplemental brief on remand that he is actually innocent and has established a gateway claim of such innocence, Respondent contends that Movant's prior conviction for Arizona second degree murder qualifies as a crime of violence under the force clause of Guideline § 4B1.2(a) and also qualifies as ‘murder' in the commentary note 1 of § 4B1.2. (Doc. 64 at 13)
Undersigned concludes that Movant has established cause and prejudice to excuse procedural default of the claims asserted in the Motion, which are based on Johnson.
The “cause and prejudice” test for excusing the failure to raise a claim on direct appeal applies where the claim rests upon a new legal or factual basis that was unavailable at the time of direct appeal. Murray v. Carrier, 477 U.S. 478, 488 (1986). Further, in Reed v. Ross, the Supreme Court held that “where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim[.]” Reedv. Ross, 468 U.S. 1, 16 (1984). The Supreme Court instructed that cause for failure to raise a claim may be found where the Court has overruled one of its precedents. Id. at 17. In Johnson, the Supreme Court held the residual clause of 18 U.S.C. § 924(e)(2)(B) was unconstitutional under the void for vagueness doctrine and specifically overruled its prior contrary holdings in James v. United States, 550 U.S. 192 (2007) and Sykes v. United States, 564 U.S. 1 (2011). Johnson, 576 U.S. at 606. As noted, Respondent concedes that after Davis, the residual clause of § 3559(c)(2)(F)(ii) is unconstitutionally vague and thus void. (Doc. 64 at 2) Thus, the state of the law when Movant filed his direct appeal did not provide a reasonable basis for Movant or his counsel to challenge the residual clause of § 3559(c). Reed, 468 U.S. at 16-17.
Movant has also established prejudice to excuse procedural default. To establish the prejudice prong of the cause and prejudice exception, Movant must “demonstrate] ‘not merely that the errors ... [in the proceedings] created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire [proceedings] with error of constitutional dimensions.'” United States v. Braswell, 501 F.3d 1147, 1150 (9th Cir. 2007) (quoting United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original)). As is explained infra in Section IV.B.1, Arizona caselaw at the time of Movant's conviction for second degree murder allowed the offense to be committed with ordinary recklessness such that the force clause or enumerated offenses clause of § 3559(c) could not have applied, and thus absent application of § 3559(c)'s residual clause Movant would not have been subject to a life sentence under § 3559(c). In light of Johnson and Davis, Movant's life sentence pursuant to § 3559(c) “worked to his actual and substantial disadvantage[.]” Frady, 456 U.S. at 170.
Undersigned further concludes that Movant has established he is able to overcome procedural default of his claims because (as explained below in Section IV.B.1) under Arizona caselaw at the time of his conviction for second degree murder, he did not have two or more prior serious violent felony convictions and thus did not qualify for the lifetime sentence he received pursuant to § 3559 and is actually innocent of the mandatory life sentence.
In Allen v. Ives, the Ninth Circuit addressed the question of “whether a petitioner who committed a crime that is not a predicate crime may challenge his career offender status under § 2241.” 950 F.3d at 1188. The petitioner in Allen asserted his conviction was not a conviction for a predicate crime and therefore that he was actually innocent of a “crime that would qualify him for a career offender status[.]” Id. The petitioner argued he had a cognizable claim pursuant to § 2241 because: (1) a retroactive change of law changed his Connecticut marijuana conviction from a predicate crime to a non-predicate crime; (2) he was actually innocent of a predicate crime used by the district court to apply a mandatory sentence enhancement; and (3) he was thus actually innocent of his mandatory sentencing enhancement. Id. at 1190. The Ninth Circuit noted that a federal prisoner is permitted to seek relief under § 2241 where the prisoner asserts a claim of actual innocence and has not been accorded an ‘“unobstructed procedural shot at presenting that claim.'” Id. at 1188 (quoting Marrero v. Ives, 682 F.3d 1190, 1192 (9th Cir. 2012)). However, because Movant raises this actual innocence claim in his initial § 2255 motion, his procedural posture is different than that of the petitioner in Allen v. Ives. Movant has an “unobstructed procedural shot” in the instant Motion to present his claim of actual innocence.
As is discussed infra in Section IV.B.1, at the time of Movant's conviction of second degree murder, the Arizona Supreme Court had held that the offense could be committed with a mens rea of ordinary recklessness. As is detailed immediately below, this circumstance is consequential to Movant's Ground 1 claim because the force clause and the enumerated offenses clause of § 3559 apply to offenses requiring a mens rea of greater than recklessness.
The force clause of § 3559(c)(2)(F)(ii) defines as a serious violent felony “any other offense punishable by a maximum term of imprisonment of 10 years or more that has as an element the use, attempted use, or threatened use of force against the person of another[.]” The Ninth Circuit has interpreted identical or nearly identical language to require a use of force with at least a mens rea greater than ordinary recklessness. See, e.g., United States v. Dixon, 805 F.3d 1193, 1197 (9th Cir. 2015) (addressing the force clause of 18 U.S.C. § 924(e)(2)(B)(i)); United States v. Benally, 843 F.3d 350, 354 (9th Cir. 2016) (discussing the force clause of 18 U.S.C. § 924(c)(3)); Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1132 (9th Cir. 2006) (en banc) (“we expressly overrule our cases holding that crimes of violence under 18 U.S.C. § 16 may include offenses committed through the reckless, or grossly negligent, use of force.”). In a June 2021 opinion, the Supreme Court in Borden v. United States, __ U.S. __, 141 S.Ct. 1817, 1821-22 (2021) held that a criminal offense is not a violent felony under § 924(e)(2)(B)(i) “if it requires only a mens rea of recklessness-a less culpable mental state than purpose or knowledge.”
The enumerated offenses clause of § 3559(c)(2)(F)(i) defines a serious violent felony in relevant part as “a Federal or State offense, by whatever designation and wherever committed, consisting of murder (as described in section 1111)[.]” The Ninth Circuit has held that pursuant to § 1111, the generic offense of murder is committed with a mens rea greater than ordinary recklessness. More specifically, the Ninth Circuit has held that murder committed with malice or malice aforethought under § 1111 requires “recklessness with extreme disregard for human life.” See United States v. Lesina, 833 F.2d 156, 159 (9th Cir. 1987) (“Only a finding of ‘extreme recklessness regarding homicidal risk' . . . will support an inference of malice aforethought[,]” citing Model Penal Code § 210.2 commentary at 15 (1985)); United States v. Houser, 130 F.3d 867, 872 (9th Cir. 1997) (“[Under 18 U.S.C. § 1111], [t]he mental element of second-degree murder is ‘malice aforethought' . . . [which] does not require an element of willfulness if the existence of that malice is inferred from the fact that defendant acted recklessly with extreme disregard for human life.”); United States v. Pineda-Doval, 614 F.3d 1019, 1040 (9th Cir. 2010) (“second-degree murder required a finding of extreme recklessness evincing disregard for human life, not simple recklessness.”).
Because Arizona caselaw on second degree murder could be committed with the mens rea of ordinary recklessness when Movant was convicted but the force clause and enumerated offenses clause of § 3559(c) require a mens rea of greater than ordinary recklessness, and the residual clause of § 3559(c) is void as unconstitutional, Movant's second degree murder conviction was not a serious violent felony for purposes of § 3559. See Section VI.B.1 infra. Thus, Movant's state second degree murder conviction did not qualify as a predicate crime under § 3559(c) and he was actually innocent of a “crime that would qualify him for a career offender status[.]”
For the reasons set forth above, Movant has established both cause and prejudice and actual innocence to excuse procedural default of the claims of his Motion. The merits of Grounds 1 through 3 of the Motion are considered below.
B. Merits of Ground 1: Movant's prior conviction for second degree murder is not a serious violent felony pursuant to 18 U.S.C. § 3559(c)(2)(F)(ii) and the record does not establish that the Court did not rely on the residual clause of § 3559(c)
Movant argues in the Motion that his 1976 second degree murder conviction-left unchallenged during his 1998 sentencing-no longer qualifies as a serious violent felony, and that his life sentence must be vacated. (Doc. 1 at 3-10) Movant asserts two grounds for this conclusion. First, he argues that after Johnson, the residual clause in section 3559(c)(2)(F)(ii) is void for vagueness. (Id. at 5-7) Respondent concedes that the Supreme Court in Davis decided that the residual clause in section 3559(c)(2)(F)(ii) is unconstitutionally vague. (Doc. 64 at 2) Second, Movant states that the Arizona second degree murder statute under which he was convicted does not qualify as a serious violent felony under either the enumerated offenses clause of section 3559(c)(2)(F)(i) or the force clause of section 3559(c)(2)(F)(ii) because the statute encompassed conduct of ordinary recklessness. (Id. at 7-10) Respondent disagrees and contends that Movant's 1976 conviction on a charge of second degree murder pursuant to A.R.S. §§ 13-451, -452, and -453 in fact qualified as a serious violent felony pursuant to either the force clause or the enumerated offenses clause of § 3559(c)(2)(F). (Doc. 64 at 2-9)
The parties concur that the Court must apply the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 600-01 (1990) to decide whether Movant's prior conviction for second degree murder in Arizona is a serious violent felony under section 3559(c)(2)(F)'s force clause. (Doc. 37 at 18-21, Doc. 64 at 2-4) Under the categorical approach, a court compares the elements of the state statute under which a defendant was convicted with the “generic” version of the offense. Mathis v. United States, U.S., 136 S.Ct. 2243, 2247 (2016). The state crime will only qualify as a predicate offense if “its elements are the same as, or narrower than, those of the generic offense.” Id. As the parties state, the categorical approach requires the Court to “examine[] what the state conviction necessarily involved and not the facts underlying the case,” and to “presume[] that the conviction ‘rested upon [nothing] more than the least of th[e] acts' criminalized, before determining whether even those acts are encompassed by the generic federal offense.” Moncrieffe v. Holder, 569 U.S. 184, 185 (2013) (quoting Johnson v. United States, 559 U.S. 133, 137 (2010). Again, in applying the categorical approach, a court will “look to the elements of the offense rather than the particular facts underlying the defendant's own conviction.” United States v. Dominguez-Maroyoqui, 748 F.3d 918, 920 (9th Cir. 2014) (citing Descamps v. United States, 570 U.S. 254, 261 (2013)).
Section 3559(c), commonly known as the federal “three strikes” law, requires:
(c) Imprisonment of certain violent felons.--
(1) Mandatory life imprisonment.--Notwithstanding any other provision of law, a person who is convicted in a court of the United States of a serious violent felony shall be sentenced to life imprisonment if-
(A) the person has been convicted (and those convictions have become final) on separate prior occasions in a court of the United States or of a State of--
(i) 2 or more serious violent felonies; or
(ii) one or more serious violent felonies and one or more serious drug offenses; and
(B) each serious violent felony or serious drug offense used as a basis for sentencing under this subsection, other than the first, was committed after the defendant's conviction of the preceding serious violent felony or serious drug offense.18 U.S.C. § 3559(c)(1) (1994).
At the time of the bank robberies in 1997 for which Movant was convicted in this Court, a “serious violent felony” was defined in relevant part as:
(i) a Federal or State offense, by whatever designation and wherever committed, consisting of murder (as described in section 1111); manslaughter other than involuntary manslaughter (as described in section 1112); . . . robbery (as described in section 2111, 2113, or 2118); . . . or attempt, conspiracy, or solicitation to commit any of the above offenses; and
(ii) any other offense punishable by a maximum term of imprisonment of 10 years or more that has as an element the use, attempted use, or threatened use of physical force against the person of another or that, by its nature, involves a substantial risk that physical force against the person of another may be used in the course of committing the offense[.]18 U.S.C. § 3559(c)(2)(F) (1994). Section 3559(c)(2)(F)(i) has been referred to as the “enumerated offenses clause.” United States v. VanHooser, 790 Fed.Appx. 55, 57 (9th Cir. 2019). Section 3559(c)(F)(ii) comprises the “force clause” and the “residual clause.” Id.
The “force clause” is the portion of section 3559(c)(2)(F)(ii) stating that a serious violent felony is “any other offense punishable by a maximum term of imprisonment of 10 years or more that has as an element the use, attempted use, or threatened use of physical force against the person of another[.]” 18 U.S.C. § 3559(c)(2)(F)(ii). The “residual clause” states that a serious violent felony is “any other offense punishable by a maximum term of imprisonment of 10 years or more ... that, by its nature, involves a substantial risk that physical force against the person of another may be used in the course of committing the offense[.]” 18 U.S.C. § 3559(c)(2)(F)(ii).
Before Movant's 1998 sentencing, the United States asserted that he had two prior serious violent felonies that qualified him for sentencing under Section 3559's “three strikes” provision. (Doc. 1 at 4; Doc. 32-1 at 2) Movant did “not contest the applicability of [his 1976 second degree murder] conviction” to Section 3559(c)(1). (Doc. 32-1 at 8) However, using Section 3559(c)(3)(A)'s “non-qualifying” provision, Movant argued that his 1993 conviction for bank robbery should not qualify as a prior strike. (Id.) After briefing on the matter, the Court concluded that Movant's bank robbery conviction was “a crime of violence” and qualified as a prior serious violent felony under Section 3559(c). (Doc. 321 at 12-21)
In September 1975, Movant was indicted in Maricopa County Superior Court on Count 1 of murder in violation of A.R.S. §§ 13-451, 13-452, and 13-453, and also on counts of assault with intent to commit murder and of first degree burglary. (Id. at 23) In January 1976, Movant pleaded guilty to a charge of second degree murder. (Doc. 32-1 at 27) He was sentenced to a term of not less than 25 years of imprisonment and not more than life. (Doc. 32 at 18) After Movant's state petition for post-conviction relief was granted, he entered into a new plea agreement in December 1991, in which he agreed to plead guilty to second degree murder pursuant to A.R.S. §§ 13-451, 452, and 453 and to first degree burglary pursuant to A.R.S. § 13-301 and -302. (Doc. 32-1 at 29-30) Consistent with the plea agreement, Movant was sentenced on the same day to time served, which was 16 years and 150 days on the second degree murder charge and three years of probation on the first degree burglary charge. (Id. at 32-42)
1. Under then-current state law, Movant's conviction of second degree murder was not a serious violent felony pursuant to § 3559
Movant states that former A.R.S. sections 13-451, -452, and -453 under which Movant was convicted of second degree murder could have been committed with a mens rea of ordinary recklessness. (Id. at 9) Movant concludes that these Arizona statutes were categorically overbroad because they penalized reckless conduct not covered by either the enumerated offense of murder as described by section 1111 or the force clause of section 3559(c)(2)(F)(ii). (Id.) In support of this conclusion, Movant relies on the Arizona Supreme Court cases in State v. Childs, 113 Ariz. 318, 321, 553 P.2d 1192, 1195 (1976); State v. Kelly, 112 Ariz. 468, 469, 543 P.2d 780, 781 (1975); and State v. Thomas, 112 Ariz. 261, 262, 540 P.2d 1242, 1243 (1975).
Prior to 1978, former A.R.S. § 13-451(A) defined “Murder” as “the unlawful killing of a human being with malice aforethought.” A.R.S. 13-451(A), repealed by 1977 Ariz. Sess. Laws ch. 142, § 15 (1st Reg. Sess.); State v. Mincey, 141 Ariz. 425, 434, 687 P.2d 1180, 1189 (1984); State v. Lua, 237 Ariz. 301, 304, 350 P.3d 805, 808 (2015). “Malice aforethought” was defined in former A.R.S. § 451(B) as either “expressed or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied when no considerable provocation appears or when the circumstances attending the killing show an abandoned and malignant heart.” A.R.S. 13-451(B), repealed by 1977 Ariz. Sess. Laws ch. 142, § 15 (1st Reg. Sess.); Mincey, 141 Ariz. at 434-35, 687 P.2d at 1189-90 (1984).
Former A.R.S. § 13-452 provided that:
[a] murder which is perpetrated by means of poison or lying in wait, torture or by any other kind of wil[l]ful, deliberate or premeditated killing, or which is committed in avoiding or preventing lawful arrest or effecting an escape from legal custody, or in the perpetration of, or attempt to perpetrate, arson, rape in the first degree, robbery, burglary, kidnapping, or mayhem, or sexual molestation of a child under the age of thirteen years, is murder of the first degree. All other kinds of murder are of the second degree.Mincey, 141 Ariz. at 434, 687 P.2d at 1189. In Lua, the Arizona Supreme Court discussed Arizona's murder statutes that were in effect in 1975 when Movant committed the acts resulting in his state conviction for second degree murder. The court stated that:
Before 1978, Arizona's criminal laws codified the common-law definitions of murder as “the unlawful killing of a human being with malice,” and manslaughter as “the unlawful killing of a human being without malice.” See
former A.R.S. §§ 13-451, -455, repealed by 1977 Ariz. Sess. Laws, ch. 142, § 15 (1st Reg. Sess.). Under that scheme, a killing that was willful, deliberate, and premeditated, or occurred during the commission of certain specified crimes, constituted first-degree murder. State v. Schantz, 98 Ariz. 200, 206, 403 P.2d 521, 524-25 (1965). A killing that lacked willfulness, deliberation, or premeditation, and did not occur during the commission of one of the specified crimes but was accompanied by malice, constituted second-degree murder. Id. at 206, 403 P.2d at 525. And if the killing lacked the element of malice, it was still the lesser offense of manslaughter, “which if committed upon a sudden quarrel or heat of passion [wa]s known as voluntary manslaughter.” Id.237 Ariz. at 304, 350 P.3d at 808.
The Arizona Supreme Court in Thomas addressed the argument of an appellant who had been convicted after trial of second degree murder that the superior court had incorrectly instructed the jury that “malice could be implied if the defendant ‘shows a reckless disregard for human life.'” 112 Ariz. at 262, 540 P.2d at 1243. The court declared that:
Malice is implied when the circumstances of the killing show ‘an abandoned and malignant heart.' ARS § 13-451(B). The phrase ‘wanton disregard for human life' has been held to reflect that statutory standard. State v. Mendell, 111 Ariz. 51, 523 P.2d 79 (1974); People v. Poddar, 10 Cal.3d 750, 111 Cal.Rptr. 910, 518 P.2d 342 (1974). We find no significant difference between the use of ‘wanton' and the use of ‘reckless.' Neither instruction conveys the idea that grossly negligent behavior is sufficient to find the malice necessary for murder as the appellant urges. State v. Mendell, supra.Id. In Kelly, the Arizona Supreme Court again considered an appeal from a defendant who was convicted after a jury trial of second degree murder and challenged a jury instruction that “malice may be found if appellant ‘shows a reckless disregard for human life[.]'” 112 Ariz. at 468-69, 543 P.2d at 780-81. The supreme court quoted the above-excerpted section of Thomas and held that the jury had been properly instructed on the element of malice. 112 Ariz. at 469, 543 P.2d at 781.
In its decision in Childs, the Arizona Supreme Court addressed several arguments by an appellant who had been convicted by a jury of first degree murder. 113 Ariz. at 320, 553 P.2d at 1194. In one argument, the appellant challenged the court's use of the Recommended Arizona Jury Instruction Crimes No. 4. Childs, 113 Ariz. at 321, 553 P.2d at 1195. The instruction informed the jury that “murder is the unlawful killing of a human being with malice” and that there were two kinds of malice. Id. The instruction defined the first type of malice, “express malice,” as occurring when a person “deliberately intends to kill.” Id. The instruction informed the jury that the second type of malice, “implied malice,” existed when a person “shows a reckless disregard for human life.” Id. In response to the appellant's argument that the instruction improperly allowed the jury to apply implied malice to find first degree murder, the court disagreed and concluded that “[i]f the jury only finds that the killing was with malice, either express or implied, and nothing more, then the correct determination would be second degree murder.” The appellant further argued that the superior court had erred by “defining implied malice as a reckless disregard for human life because this definition is equivalent to an instruction that gross negligence equals malice.” Id. Citing Kelly, the Arizona Supreme Court reiterated that it had held that the instruction was proper. Id.
As noted, Movant argues that the generic federal crime of murder “as described in section 1111” requires a mens rea greater than ordinary recklessness, such as extreme recklessness regarding homicidal risk. (Doc. 53 at 8-9) Movant contends that the former Arizona statute defining second degree murder is “categorically overbroad because it penalizes reckless conduct not encompassed by the force clause of § 35589(c)(2)(F)(ii) or by ‘murder (as described in section 1111' under § 3559(c)(2)(F)(i).” (Id. at 9) Additionally, Movant asserts that § 3559(c)(2)(F)(i) expressly excludes prior convictions that would constitute the crime of involuntary manslaughter “as described in section 1112” from the definition of a “serious violent felony.” (Id. at 10) Movant declares that the former Arizona second degree murder statute, like the crime of involuntary manslaughter pursuant to 18 U.S.C. § 1112, may be committed with a mens rea of “reckless disregard for human life.” (Id. at 10 (quoting United States v. Garcia, 729 F.3d 1171, 1175-76 (9th Cir. 2013))).
Respondent cautions that the “question currently before this Court-whether former A.R.S. § 13-451 encompassed a reckless mens rea such that it does not qualify as a serious violent felony-was not the question squarely presented before the Arizona Supreme Court” in Childs, Kelly, and Thomas. (Doc. 64 at 6) Instead, Respondent asserts that the state supreme court was assessing the propriety of a jury instruction given in each case and that the court concluded that the instruction had not been given in error “because an instruction regarding recklessness is not equivalent to an instruction regarding gross negligence-a mens rea which is insufficient to sustain a conviction under § 13 -451.” (Id.; see also Childs, 113 Ariz. at 321, 553 P.2d at 1195 (citing Kelly generally)); Kelly, 112 Ariz. at 469, 543 P.2d at 781 (quoting Thomas, 112 Ariz. at 262, 540 P.2d at 1243); Thomas, 112 Ariz. at 262, 540 P.2d at 1243 (citing Mendell, 111 Ariz. 51, 523 P.2d 79).
Respondent points to commentary of the 1975 Arizona Criminal Code Commission, which it states was responsible for revising Arizona's Criminal Code. (Id. at 8) Respondent notes that the commentary states that the new section 1103(a)(3) defining second degree murder ‘“penalizes with equal severity a homicide committed “recklessly” under circumstances which manifest extreme indifference to human life. The extreme indifference involved in this type of activity distinguishes it from the less culpable recklessness involved in § 1102(a)(1) [manslaughter].'” (Id. at 8) Respondent asserts that the “distinction between ordinary recklessness and the extreme indifference recklessness involved in malice aforethought is critical in determining whether a crime qualifies as a ‘serious violent felony' or ‘crime of violence.'” (Id.)
The Arizona Supreme Court addressed challenges to a recommended jury instruction in Childs, Kelly, and Thomas and in each of these opinions the court concluded that the superior court had not erred in defining implied malice for the jury as a “reckless disregard for human life.” Childs, 113 Ariz. at 321, 553 P.2d at 1195; Kelly, 112 Ariz. at 469-70, 543 P.2d at 781-82; Thomas, 112 Ariz. at 262, 540 P.2d at 1243. As noted, under Arizona's criminal statutes then in effect malice was a necessary element of first and second degree murder, but not of manslaughter. Lua, 237 Ariz. at 304, 350 P.3d at 808.
Arizona's “current” criminal code became effective in 1978 and “replaced the various statutory and common law concepts of ‘mens rea' with four specifically defined culpable mental states”: intentionally, knowingly, recklessly, and with criminal negligence. State v. Galan, 134 Ariz. 590, 591, 658 P.2d 243, 244 (App. 1982). The Arizona Criminal Code “Commission and the Legislature generally relied on the Model Penal Code in drafting Arizona's revised criminal statutes.” State v. Bowsher, 225 Ariz. 586, 587-88, 242 P.3d 1055, 1056-57 (2010) (en banc). The commentary to the Commission's revised criminal code addressing homicide explained that the “code eliminates many of the present troublesome homicide mens rea elements including malice aforethought, abandoned and malignant heart, [and] express and implied malice,” and replaced them with the four “simpler” culpable mental states listed above. (Doc. 64-1 at 19) However, the changes to Arizona's criminal code effective in 1978 were not in effect when Movant committed second degree murder in 1975. The Arizona Supreme Court's opinions in Childs, Kelly, and Thomas each were decided prior to the 1978 revisions and each concluded that a jury instruction defining implied malice as involving a reckless disregard for human life was not error. In each case, the Arizona Supreme Court affirmed the appellant's conviction for murder, which required a jury to find malice. Lua, 237 Ariz. at 304, 350 P.3d at 808 (citing former A.R.S. §§ 13-451, -452).
Respondent does not cite, and undersigned was unable to identify, any Arizona court or other court decision criticizing these opinions. Moreover, Respondent does not establish that the revision of the Arizona Criminal Code effective in 1978 demonstrates that the elements for second degree murder defined in the revised criminal code were equivalent to the elements defined in the former criminal code in effect when Movant committed the acts leading to his conviction for second degree murder. In fact, Respondent accurately reports that the revised criminal code “replaced the offense of second-degree murder defined under then-existing A.R.S. §§ 13-451 and 13-452” and defined this offense using the concepts of “knowledge” and “intent” in place of “the legally cumbersome concepts of “malice,” “implied malice,” “express malice,” and “an abandoned and malignant heart.” (Doc. 64 at 8, citing commentary addressing the 1975 Commission Revised Code § 1103 (second degree murder), attached at Doc. 64-1 at 22-23)
The Supreme Court has instructed that federal courts are bound by a state supreme court's “interpretation of state law, including its determination of the elements[.]” Johnson v. United States, 559 U.S. 133, 138 (2010). Although Respondent states that the “Arizona Supreme Court has consistently defined ‘malice aforethought' as more than ordinary recklessness” (Doc. 64 at 5), Respondent fails to cite to any Arizona Supreme Court case decided subsequent to Childs, Kelly, and Thomas repudiating the conclusions stated by the Arizona Supreme Court in these cases that: (1) pursuant to former A.R.S. § 13-451, malice could be implied under circumstances where a killing showed “an abandoned and malignant heart”; (2) the phrase “wanton disregard for human life” had been “held to reflect” the abandoned and malignant heart standard; (3) the court found “no significant difference” between the use of the term “wanton” and use of the term “reckless”; and (4) instruction of the jury that malice could be implied “if the defendant ‘shows a reckless disregard for human life'” would not permit a jury to conclude that “grossly negligent behavior is sufficient to find the malice necessary for murder[.]” Thomas, 112 Ariz. at 262, 540 P.2d at 1243; accord Kelly, 112 Ariz. at 469-70, 543 P.2d at 781-82; Childs, 113 Ariz. at 321, 553 P.2d at 1195.
As discussed, the residual clause of § 3559(c) is unconstitutionally vague and the force clause and enumerated offenses clause of § 3559(c) require a mens rea of greater than ordinary recklessness. At the time of Movant's conviction for second degree murder, this offense could have committed with ordinary recklessness. As a result, Arizona's second degree murder statute under which Movant was convicted was categorically overbroad because it penalized merely reckless conduct not captured by the force or enumerated offenses clauses of § 3559(c), and there are no other applicable grounds under which to conclude that Movant's conviction was a serious violent felony pursuant to § 3559(c).
2. The record is not clear that the Court relied on the residual clause of § 3559(c)(2)(F) in determining that Movant had three strikes justifying a life sentence
Movant asserts that at his sentencing hearing on February 9, 1998, the Court imposed mandatory life sentences on both bank robbery counts without specifying whether it had relied on section 3559(c)(2)(F)'s residual clause or another clause within that section. (Doc. 53 at 7) As noted, Movant argues that the force clause of section 3559(c)(2)(F)(ii) applies to offenses requiring a use of force with at least a mens rea greater than recklessness. (Id. at 8) Additionally, regarding the enumerated offenses clause of section 3559(c)(2)(F)(i), Movant contends that “murder (as described in section 1111)” categorically requires a mens rea greater than ordinary recklessness. (Id. at 8-9)
Respondent argues that the Court did not rely on the residual clause of § 3559(c)(2)(F) to find Movant's prior convictions for federal bank robbery and state second degree murder were serious violent felony offenses in sentencing Movant but applied instead the enumerated offenses clause of § 3559(c)(2)(F)(i) and the exception to § 3559(c)(2)(F)(i) set forth in § 3559(c)(3)(A). (Doc. 32 at 6) Respondent concedes that the Court did not expressly state at sentencing that it was not relying on the residual clause to sentence Movant. (Id. at 7) However, Respondent argues that the parties' briefing and statements made by the Court at sentencing demonstrate that the Court did not rely on the residual clause of § 3559(c)(2)(F)(ii). (Id. at 6-9) As discussed below, the record supports Respondent's argument as to Movant's 1993 federal bank robbery conviction, but provides no support in this regard as to Movant's other predicate offense, his state second degree murder conviction.
Both parties cite to the Ninth Circuit's decision in United States v. Geozos to support their positions. (Doc. 32 at 7-8, Doc. 37 at 2-4, Doc. 53 at 7-8 (citing United States v. Geozos, 870 F.3d 890 (9th Cir. 2017), overruled on other grounds by Stokeling v. United States, __ U.S. __, 139 S.Ct. 544 (2019), as recognized in Ward v. United States, 936 F.3d 914, 918 (9th Cir. 2019))). In Geozos, the Ninth Circuit held that “when it is unclear [from the record] whether a sentencing court relied on the residual clause in finding that a defendant qualified as an armed career criminal, but it may have, the defendant's § 2255 claim ‘relies on' the constitutional rule announced in Johnson II.” 870 F.3d at 896. As Respondent notes, the Ninth Circuit also instructed that “a claim does not ‘rely on' Johnson II if it is possible to conclude, using both the record before the sentencing court and the relevant background legal environment at the time of sentencing, that the sentencing court's ACCA determination did not rest on the residual clause.” (Doc. 32 at 7 (citing Geozos, 870 F.3d at 896))
The Court conducted Movant's initial sentencing hearing on February 9, 1998. (Doc. 53-2 at 2-42) Based on Movant's argument that he had not been accorded the opportunity to challenge the information regarding the three strikes provision of § 3559(c)(1)(A)(1), the Court continued the sentencing hearing to permit briefing on Movant's challenge to the information and the use of his prior convictions as a basis for applying an enhanced punishment pursuant to the three strikes provision. (Id. at 35-41) Shortly thereafter, Movant filed a motion to strike the information because “one of the two (2) alleged enumerated offenses, specifically, the October 4, 1993 Bank Robbery conviction in 93CR00125-002-PHX-PGR does not qualify as a serious violent felony” based on Movant's argument that the weapon used by Movant was merely a pellet gun and did not qualify as a firearm or a dangerous weapon. (Doc. 32-1 at 7, 9-10) In the motion to strike, Movant stated that he did not “contest the applicability” of his other prior conviction, which was his 1976 state conviction for second degree murder. (Id. at 8)
In its response to Movant's motion to strike the information, Respondent argued that Movant had failed to establish either: (1) that the pellet gun he allegedly used during the robbery was not a dangerous weapon; or (2) that his conviction of the crime of armed robbery did not “contain an element of physical force, whether used, attempted to be used or threatened to be used against another or that, by its very nature, involves a substantial risk that physical force against the person of another may be used in the course of committing the offense.” (Id. at 15) Respondent asserted that under the facts, Movant had failed to show that “his use of a pellet gun in his armed bank robbery did not involve the threat of use of a dangerous weapon which was used to effectuate the offense.” (Id. at 17)
At Movant's continued sentencing hearing held on March 27, 1998, the Court advised the parties it had reviewed the briefing on Movant's motion to strike the information and concluded that Respondent's position as set forth in its briefing was “well taken.” (Doc. 53-3 at 4-5) The Court declared that Movant's armed robbery conviction qualified as a crime of violence, stating:
When you use a weapon, whether it's a real one or not, you intend to intimidate people and put them in fear. That's an element of the offense; and therefore, it's a qualification. And based on the sentencing guidelines and the statute of 18 U.S.C. [§] 3559, and the presentence report, even as modified, [Movant], you qualify for the sentencing enhancement.(Id. at 5) Thus, the Court concluded that Movant's prior federal bank robbery conviction qualified as an enumerated offense pursuant to § 3559(c)(2)(F)(i) and was not a nonqualifying offense under § 3559(c)(3)(A). While Respondent asserts that the Court's discussion of Movant's 1993 federal bank robbery conviction demonstrates that the Court “did not rely on the residual clause of § 3559(c) when sentencing [Movant],” (Doc. 32 at 9), this assertion completely ignores that the record establishes the Court made no mention of which ground within § 3559(c) it relied on to conclude that Movant's state second degree murder conviction qualified as a serious violent felony.
Accordingly, Respondent has not established that the record supports the conclusion that the Court did not rely on the residual clause of § 3559(c)(2)(F)(ii) in sentencing Movant. Because the record is not clear that the Court did not rely on the residual clause of § 3559(c) with respect to Movant's prior state conviction for second degree murder, the Court finds that Movant's claim “relies on” the rule announced in Johnson. Geozos, 870 F.3d at 896. Further, as is concluded supra in Section IV.B.1, Movant's state second degree murder conviction does not qualify as a conviction for a serious violent felony because under Arizona Supreme Court law at the time of his conviction, the offense could be committed with a mens rea of ordinary recklessness.
3. Movant's life sentence should be vacated and he should be resentenced under § 3559(c)
As discussed above, in light of Johnson and Davis and the state of Arizona caselaw when Movant committed the Arizona offense of second degree murder, there existed no applicable grounds under which to conclude that Movant's conviction was a serious violent felony pursuant to § 3559(c). Moreover, the record establishes that the record is unclear whether the Court relied on the residual clause to find Movant qualified under the three strikes provision in 18 U.S.C. § 3559(c). Accordingly, it is recommended that Movant's life sentences should be vacated and Movant should be resentenced.
C. Merits of Ground 2: Movant's Sentence Pursuant to § 924(c) Should Not Be Corrected
1. Crime of Violence
Movant was convicted for bank robbery under 18 U.S.C. § 2113(a) and sentenced under 18 U.S.C. § 924(c). Arnold, 182 F.3d at 928. In the Motion, Movant argues he is entitled to correction of his sentence because the residual clause of section 924(c)(3)(B) is void for vagueness (Doc. 1 at 12-13) and because bank robbery does not qualify as a crime of violence under the force clause of section 924(c) (Id. at 13-18).
Title 18 U.S.C. § 924(c)(3) defines a “crime of violence” as a felony that either:
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.18 U.S.C. § 924(c)(3). Section (A) is the “force clause” and is satisfied if the predicate crime has as an element the use of “‘violent' physical force--‘that is force capable of causing physical pain or injury.'” United States v. Watson, 881 F.3d 782, 786 (9th Cir.) (per curiam), cert. denied, 139 S.Ct. 203 (2018) (quoting Johnson v. United States, 559 U.S. 133, 140 (2010)). Section (B) is the “residual clause.” Id. at 784. Respondent concedes that the Supreme Court in United States v. Davis determined that the residual clause of § 924(c)(3)(B) is unconstitutionally vague and “withdraws its prior arguments that rested upon the survival” of that clause. (Doc. 64 at 2)
As relevant here, 18 U.S.C. § 2113(a) requires that:
Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association ...
[s]hall be fined under this title or imprisoned not more than twenty years, or both.18 U.S.C. § 2113(a). Section 2113(d) further requires that “[w]however, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of dangerous weapon or device, shall be fined under this title or imprisoned not more than twenty-five years, or both.” 18 U.S.C. § 2113(d).
Movant recognizes that in Watson, the Ninth Circuit held that pursuant to 18 U.S.C. § 2113(a) and (d), armed robbery “categorically qualifies as a predicate ‘crime of violence' under § 924(c)(3)(A), which requires a mens rea greater than negligence.” (Doc. 53 at 11) In arguing that his predicate bank robbery convictions pursuant to 18 U.S.C. § 924(c)(3)(A) do not categorically qualify as crimes of violence, Movant states that under the particular facts of his case, there is a realistic probability that the statute was applied by the Court “in an overbroad manner.” (Doc. 53 at 11-12) Movant alleges that at his 1998 trial on his two § 2113(a) bank robbery counts, the jury was not instructed to find that Movant knowingly used intimidation and that the instructions “affirmatively authorized a conviction if he was merely negligent as to whether his acts were intimidating.” (Id. at 12, citing Doc. 53-5 at 8-9)
Movant relies on Elonis v. United States, 575 U.S. 723 (2015) to argue that because the jury in his 1998 bank robbery prosecution was instructed that the intimidation element ‘“is satisfied if an ordinary person in the victim teller's position reasonable could infer a threat of bodily harm of the defendant's act, whether or not the defendant intended to intimidate the teller[,]'” the element could be satisfied with merely negligent conduct and his bank robbery convictions do not “categorically qualify as predicate ‘crimes of violence' under § 924(c).” (Id., quoting Doc. 53-5 at 9) Movant argues that the Court must vacate his § 924(c) convictions and that he should be “resentenced on his remaining bank robbery convictions under current law-including as to the applicability of § 3559(c) and any career offender enhancement.” (Id.)
In Elonis v. United States, the Supreme Court reviewed a conviction under 18 U.S.C. § 875(c), which outlaws transmitting in interstate commerce “any threat to kidnap any person or any threat to injure the person of another,” but which, like § 2113(a), does not expressly provide a mens rea requirement. Elonis, 575 U.S. at 732-34. In Elonis, the district court had instructed the jury to convict if the defendant “intentionally ma[de] a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted” as a threat. Id. at 731. The Supreme Court vacated the conviction because the district court's instruction, by focusing “solely on how [the defendant's statements] would be understood by a reasonable person” had “reduce[d] culpability on the all-important element of the crime to negligence” and had eliminated “the conventional requirement for criminal conduct-awareness of some wrongdoing.” Id. at 737-38 (quoting Staples v. United States, 511 U.S. 600, 606-07 (1994)).
Respondent counters that Movant's claim is foreclosed by Watson because pursuant to § 2113(a), bank robbery requires ‘“proof of general intent-that is, the defendant possessed knowledge with respect to the actus reus of the crime (here, taking the property of another by force and violence or intimidation).'” (Doc. 64 at 11 (citing Carter v. United States, 530 U.S. 255, 268 (2000) (emphasis in original))) Respondent asserts that in Watson, the Ninth Circuit rejected the defendants' arguments that the crime of bank robbery by intimidation did not meet the mens rea necessary for a crime of violence and that a defendant who negligently intimidated the victim could be convicted of bank robbery because intimidation is defined from a reasonable victim's perspective. (Id. at 12, citing Watson, 881 F.3d at 785)
Undersigned concludes that Movant's argument fails for the reasons set forth below. As the Third Circuit concluded in United States v. Wilson, an argument attempting to extend the reasoning in Elonis to § 2113(a) is “misguided.” 880 F.3d 80, 86 (3d Cir. 2018). The Third Circuit stated that in Elonis, the Supreme Court clarified “that courts should read a scienter requirement into statutes only to the extent necessary to prevent criminalizing otherwise innocent conduct.” Id. Assessing the Elonis Court's application of 18 U.S.C. § 875 in that case, the Third Circuit pointed out that the Supreme Court:
determined that § 875(c) required the government to prove a defendant intended his communication to be threatening because the only thing separating innocent conduct from wrongful conduct under that statute was “the threatening nature of the communication.” In other words, the Court emphasized that “a defendant generally must know the facts that make his conduct fit the definition of the offense[.]” Id. at [735] (quotation marks and citation omitted). Convicting a defendant solely on how a reasonable person perceived the relevant communication impermissibly risked creating criminal culpability for nothing more than a foolishly worded message. Id. at [737-39].Id. The Third Circuit concluded that the Supreme Court's reasoning in Elonis was inapplicable to § 2113(a) because “as recognized in Elonis itself, a statute criminalizing acts knowingly undertaken to deprive someone of property has, by virtue of that ‘knowing' element, a sufficient mens rea to avoid the risk of making lawful conduct unlawful.” Id. at 86-87 (citing Elonis, 575 U.S. at 736-37 (citing Carter, 530 U.S. at 269)). The Third Circuit cited the Supreme Court's decision in Carter for the proposition that “because § 2113(a) is a statute requiring only general intent, it is enough for the government to prove that the defendant took knowing action to rob a bank.” Id. at 87. The Third Circuit concluded that the Supreme Court opinions in Elonis and Carter are “are not at odds” and that “[u]sing an objective standard to apply 2113(a)'s intimidation requirement does not trigger the concerns raised by Elonis, because, to be guilty, the defendant must have knowingly robbed or attempted to rob a bank[.]” Id. Put another way, the Third Circuit concluded “the defendant had to know he was taking money from a financial institution that was not simply giving it away.” Id.
Similarly, the Seventh Circuit in United States v. Williams rejected the defendant appellant's argument that federal bank robbery pursuant to § 2113 is not categorically a crime of violence under the force clause of § 924(c), and that the mens rea recognized by the Supreme Court regarding 18 U.S.C. § 875(c) should extend to bank robbery as defined in § 2113(a). United States v. Williams, 864 F.3d 826, 828-30 (7th Cir. 2017). The Seventh Circuit concluded that the reasoning set forth in Elonis “does not extend to bank robbery, where the concerns about innocent conduct and free speech in Elonis do not apply. Williams's argument regarding intent is imported from, and better suited to, statutes criminalizing pure threats. Bank robbery is caused by intentional acts, not by negligence or accidental conduct.” Id. at 829-30.
In United States v. Harper, the Eighth Circuit stated that it had held in 1992 that robbery by intimidation pursuant to § 2113(a) categorically involves the threatened use of force, and that this holding would control unless it had been “superseded by an intervening decision of the Supreme Court.” United States v. Harper, 869 F.3d 624, 626 (2017) (citing United States v. Wright, 957 F.2d 520 (8th Cir. 1992)). The Eighth Circuit disagreed with the defendant-appellant's argument that Elonis had abrogated United States v. Wright and that the threatened use of force “after Elonis requires a specific intent to issue a threat.” 869 F.3d at 626. The court concluded that Elonis had “held only that a certain criminal statute required proof of a particular mens rea[,]”and had not announced “a universal definition of ‘threat' that always requires the same mens rea.” Id.
Undersigned concludes that the reasoning set forth in Wilson, Williams, and Harper is persuasive and that the Supreme Court's discussion of the mens rea applicable to 18 U.S.C. § 875(c) does not extend to § 2113(a).
As noted, the Ninth Circuit in Watson held that armed bank robbery pursuant to § 2113(a) qualifies as a crime of violence under § 924(c). 881 F.3d at 786. The Ninth Circuit stated that “a defendant may be convicted of bank robbery only if the government proves that he at least ‘possessed knowledge with respect to the . . . taking of property of another by force and violence or intimidation.'” Id. (quoting Carter, 530 U.S. at 268). Following the persuasive reasoning of the Third, Seventh, and Eighth Circuits discussed above, Elonis does not apply to abrogate Watson.
It is now settled law in the Ninth Circuit that armed bank robbery categorically qualifies as a crime of violence. Watson, 881 F.3d 786. Movant's arguments to the contrary are not persuasive. It is recommended the Court not vacate Movant's two § 924(c) convictions and that the Court not resentence Movant on these convictions.
2. The First Step Act
Movant urges that he must be resentenced on his violations pursuant to § 924(c) because he was sentenced on two violations in a single prosecution and received a mandatory consecutive 25-year sentence, but the law was subsequently amended under the First Step Act of 2018 such that currently the same two convictions “would result in only a combined 10-year consecutive sentence because Congress has eliminated the higher mandatory minimum penalty for a ‘second or subsequent' § 924(c) offense charged in one indictment.” (Doc. 53 at 6 n.1) Citing United States v. Henry, 983 F.3d 214, 222 (6th Cir. 2020) and United States v. Bethany, 975 F.3d 642, 649 (7th Cir. 2020), Movant concludes that “[s]everal circuits have held that § 403(a) of the First Step Act applies at a resentencing.” (Id.) However, as Respondent accurately observes, in both Henry and Bethany, the defendants' sentences had been vacated and remanded and their resentencings were pending when the First Step Act became law. Henry, 983 F.3d at 21617; Bethany, 975 F.3d at 649-50.
Pub. L. 115-391, § 403(a), 132 Stat. 5194, 5221-22 (2018).
In United States v. Voris, the Ninth Circuit noted that Congress had expressly limited the retroactive application of § 403 by providing that § 403 “and the amendments made by this section, shall apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.” 964 F.3d 864, 873-74 (9th Cir. 2020) (emphasis in Voris). The Ninth Circuit rejected the defendant-appellant's argument that the statute's language encompassed application of the amendments to cases pending on appeal when the First Step Act became law. Id. Instead, citing decisions on the issue by the First, Third, Fourth, and Sixth Circuits, the Ninth Circuit concluded that “a sentence is ‘imposed' under § 403(b) when the district court sentences the defendant.” Id. at 874. The Voris court held that “§ 403 of the First Step Act does not apply to cases pending on appeal in which the district court sentenced the defendant before the enactment of the First Step Act.” Id. at 875.
Even if Watson had not held that armed bank robbery categorically qualifies as a crime of violence, and Movant were eligible for resentencing, the First Step Act would not apply here because Movant was sentenced well before the Act was passed in December 2018, and its amendments do not apply.
D. Merits of Ground 3: Movant's Career Offender Designation Is Not Improper Under Johnson
Movant asserts his designation as a career offender pursuant to U.S.S.G. § 4B1.1 was rendered unconstitutional by Johnson because the Supreme Court's reasoning in Johnson must extend to also find § 4B1.2(a)(2) void for vagueness. (Doc. 1 at 18-23) Section 4B1.1 defines a “career offender” and sets forth guidelines for sentencing ranges for such offenders. A career offender is defined as a defendant: (1) who was at least 18 at the time he committed the offense of conviction; (2) who was convicted of an offense that is a felony “crime of violence” or a controlled substance offense; and (3) who “has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). At the time of Movant's sentencing, § 4B1.2(a) defined a “crime of violence” for purposes of § 4B1.1. as:
any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that - (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.U.S.S.G. § 4B1.2(a) (effective November 1, 1997). This definition comprised three parts: the force clause contained in § 4B1.2(a)(1); the enumerated offenses clause in § 4B1.2(a)(2) addressing burglary, arson, extortion and use of explosives; and the residual clause in § 4B 1.2(a)(2) stating “or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Carpio v. United States, 218 F.Supp.3d 1182, 1186 (W.D. Wash. 2016). Movant urges that Johnson compels a finding that the residual clause of § 4B1.2(a)(2) effective when he was sentenced is unconstitutionally vague. (Doc. 1 at 19)
Further, Movant contends that his “prior Arizona second-degree murder conviction does not categorically qualify under § 4B1.2(a)'s remaining force clause because it could have been committed recklessly.” (Doc. 53 at 15)
The Ninth Circuit in Blackstone held that subsequent to United States v. Johnson, the Supreme Court had not “held that the mandatory Sentencing Guidelines are subject to [a] vagueness challenge” and “did not recognize a new right applicable to the mandatory Sentencing Guidelines on collateral review.” Blackstone, 903 F.3d at 1023. The Ninth Circuit cited in support of this holding Raybon v. United States, 867 F.3d 625, 629 (6th Cir. 2017) (whether Johnson applies to the mandatory sentencing guidelines “is an open question”); United States v. Brown, 868 F.3d 297, 301 (4th Cir. 2017) (“if the existence of a right remains an open question as a matter of Supreme Court precedent, then the Supreme Court has not ‘recognized' that right”); and United States v. Greer, 881 F.3d 1241, 1248 (10th Cir. 2018) (“[t]he Court did not consider in Johnson, and has still not decided, whether the mandatory Guidelines can be challenged for vagueness in the first instance, let alone whether such a challenge would prevail”). Other federal circuits have also reached the same conclusion. See United States v. Green, 898 F.3d 315, 321 (3d Cir. 2018) (“in light of Beckles, Johnson's holding as to the residual clause in the ACCA created a right only as to the ACCA, and not a broader right that applied to all similarly worded residual clauses, such as that found in the advisory Sentencing Guidelines”); Russo v. United States, 902 F.3d 880, 883 (8th Cir. 2018) (“[t]he better view is that Beckles leaves open the question whether the mandatory guidelines are susceptible to vagueness challenges”) (citation and internal quotation marks omitted); and United States v. London, 937 F.3d 502, 507, 509 (5th Cir. 2019) (concluding “it is debatable whether the right recognized in Johnson applies to the pre-Booker sentencing guidelines” and that to hold the residual clause in U.S.S.G. § 4B1.2 pre-Booker violates constitutional due process “would extend, as opposed to apply, Johnson to the pre-Booker Guidelines.”).
In Blackstone, the Ninth Circuit disagreed with the Seventh Circuit's contrary holding on the question in Cross v. United States, 892 F.3d 288, 293 (7th Cir. 2018). 903 F.3d at 1027. The Ninth Circuit concluded that in Cross, the Seventh Circuit failed to “consider the intent and purpose of AEDPA[,]” and stated that “[particularly in light of the statement in Justice Sotomayor's concurring opinion in Beckles that the question remains open before the Court, it is not for us to declare anything to the contrary.” Recently, the D.C. Circuit “departed” from the approach adopted by the Ninth Circuit in Blackstone and similar decisions of the circuit courts in Raybon, Brown, Greer, Green, Russo, and London. United States v. Arrington, 4 F.4th 162 (D.C. Cir. 2021). The D.C. Circuit concluded that “Johnson recognized a person's right not to have his sentence dictated by the unconstitutionally vague language contained in the mandatory residual clause” and that the appellant in Arrington had asserted that right in his § 2255 petition.
Movant in his supplemental brief on remand cites the Seventh Circuit in Cross, 892 F.3d at 291 and the First Circuit in Shea v. United States, 976 F.3d 63, 74-82 (1st Cir. 2020) for the proposition that the residual clause in § 4B1.2(a)(2) was ‘always unconstitutionally vague insofar as it determined mandatory sentencing ranges for pre-Booker defendants.'” (Doc. 53 at 13-14) Movant states that while the Ninth Circuit mentioned that the petitioner in Blackstone had asserted an actual innocence argument relating to his § 924(c) conviction to the district court, the Ninth Circuit did not further discuss the issue. (Id. at 14, citing 903 F.3d at 1028)
In August 2021, the Ninth Circuit in an unpublished, nonprecedential memorandum opinion rejected a defendant-appellant's argument that “his career offender sentence must be vacated because Johnson . . . applies to the mandatory Sentencing Guidelines and renders the residual clause of U.S.S.G. § 4B1.1 unconstitutionally vague.” United States v. Givens, 857 Fed.Appx. 272 at *1 (9th Cir. Aug. 23, 2021). The Ninth Circuit concluded that the argument had been “foreclosed” by Blackstone. Id.
Movant provides the Court with no reason it should not follow Blackstone's holding that “Johnson did not recognize a new right applicable to the mandatory Sentencing Guidelines on collateral review.” 903 F.3d at 1028. This Court cannot rule that binding Ninth Circuit precedent is wrongly decided. Accordingly, it is recommended that the Court not resentence Movant based on his argument that based on Johnson and its progeny he did not qualify for the career offender enhancement of U.S.S.G. § 4B1.1.
V. EVIDENTIARY HEARING
When considering a § 2255 petition, the district court shall hold an evidentiary hearing “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” § 2255. Because the facts needed to rule on Petitioner's motion are included in the briefs, an evidentiary hearing is not necessary to further develop the record. Additionally, the parties do not dispute any facts in this case. Accordingly, on this record, undersigned recommends there is no need for an evidentiary hearing.
VI. CERTIFICATE OF APPEALABILITY
When a district court enters a final order adverse to the petitioner in a § 2255 proceeding, it must either issue or deny a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). A certificate of appealability is appropriate only where the petitioner makes “a substantial showing of the denial of a constitutional right.” Miller-El v. Cockrell, 537 U.S. 322, 330 (2003) (quoting 28 U.S.C. § 2253(c)(2)). Under this standard, the petitioner must demonstrate that “reasonable jurists could debate whether [ ] the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (citation and internal quotation marks omitted).
Here, undersigned recommends granting relief on Movant's Ground 1 and denying relief on Grounds 2 and 3 based upon precedential Ninth Circuit caselaw. For the reasons set forth in Sections IV.C and IV.D supra, Movant fails to make a substantial showing of the denial of a constitutional right as to his Grounds 2 and 3 claims and does not demonstrate that reasonable jurists could debate whether these claims might have been resolved differently or that the issues presented were adequate to further proceed. Accordingly, it is recommended that the Court deny a certificate of appealability regarding Movant's Grounds 2 and 3 claims.
VII. CONCLUSION
For the reasons provided above, undersigned concludes that Movant's 1976 state second degree murder conviction may not serve as a predicate offense for the three-strikes law because it does not categorically qualify under the force clause or the enumerated-offenses clause and cannot qualify under the residual clause because that clause is unconstitutionally vague. Because there are no longer two prior serious violent felonies supporting Movant's § 3559(c) lifetime sentence, it is recommended that Movant is entitled to habeas relief on Ground 1 of the Motion under 28 U.S.C. § 2255(a), and that the Court resentence Petitioner to another sentence that was available at the time of the original sentencing in accordance with § 3559(c)(7). As is also set forth above, undersigned recommends that Movant fails to establish he qualifies for relief under Grounds 2 and 3 of the Motion, and that relief should therefore be denied.
Accordingly, IT IS RECOMMENDED that James Wade Arnold's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 1) be granted in part and denied in part as set forth herein, without an evidentiary hearing.
IT IS FURTHER RECOMMENDED that Movant be granted habeas relief under Ground 1, that his lifetime sentence under 18 U.S.C. § 3559 be vacated, and that Movant be resentenced pursuant to 18 U.S.C. § 3559(c)(7).
IT IS FURTHER RECOMMENDED that relief under Movant's Grounds 2 and 3 be denied for the reasons set forth above.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability be denied regarding Movant's Grounds 2 and 3 claims for the reasons set forth above.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See, 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure timely to file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure timely to file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule 72, Federal Rules of Civil Procedure.