Opinion
CV-20-8251-PCT-SPL (JFM) CR-98-0736-PCT-SPL
02-24-2023
Marvin Lee Caddo, Movant/Defendant v. United States of America, Respondent/Plaintiff.
REPORT & RECOMMENDATION ON MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE
JAMES F. METCALF, UNITED STATES MAGISTRATE JUDGE
I. MATTER UNDER CONSIDERATION
Movant, following his conviction in the United States District Court for the District of Arizona, has filed an Amended Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 9). Movant's Motion is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 10, Rules Governing Section 2255 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND
Pursuant to a written plea agreement (CRDoc. 90), Movant pled guilty to three counts of second-degree murder, in violation of 18 U.S.C. § 1111, and one count of using a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). On March 27, 2000 he was sentenced to a total of 396 months in prison, consisting of three concurrent terms of 336 months for the murder counts followed by a 60-month sentence for the § 924(c) count. (Judgment 3/27/00, CRDoc. 107.) Judgment was entered on the Court's docket on March 29, 2000. (Id.)
Items from the underlying criminal case docket are referenced herein as “CRDoc.”
Movant did not appeal his convictions or sentences, and has not filed a previous motion to vacate. (Amend. Mot., Doc. 9 at 2; see generally CR-98-0736-PCT-SPL Docket.)
Movant commenced this case by filing pro se his original Motion to Vacate (Doc. 1) pursuant to 28 U.S.C. § 2255 on September 16. 2020. That motion argued that his second-degree murder conviction was illegal because it is not a crime of violence under § 924(c)(3)(A) in the wake of various decisions.
The Clerk has filed the original Motion as of September 20, 2020. However, the motion indicates it was delivered to prison officials for mailing to the court on September 16, 2020. (Doc. 1 at 6.) “In determining when a pro se state or federal petition is filed, the ‘mailbox' rule applies. A petition is considered to be filed on the date a prisoner hands the petition to prison officials for mailing.” Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010). Under the prison mailbox rule, the original Motion is deemed filed as of September 16, 2020.
Counsel was appointed who filed an Amended Motion to Vacate (Doc. 9) on the same grounds. The case was stayed on various occasions (see Order 10/7/20, Doc. 6; Order 8/18/21, Doc. 13; Order 6/16/22, Doc. 20), ending on October 14, 2022 (Doc. 24).
On November 14, 2022, the Government filed its Limited Answer (Doc. 25) arguing that the Motion to Vacate was untimely and barred by the statute of limitations, and that the claims were procedurally defaulted by failure to raise them on direct appeal.
On December 19, 2022 Movant filed a Notice (Doc. 27) declining to reply on the basis that, in light of intervening decisions, the ground for relief is without merit.
III. APPLICATION OF LAW TO FACTS
A. STATUTE OF LIMITATIONS
1. Motions Untimely
A 1-year time limit applies to habeas proceedings by federal prisoners in a motion to vacate under 28 U.S.C. § 2255. 28 U.S.C. § 2255(f). That time limit generally begins to run on “the day on which the judgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1). “[I]f the movant does not pursue a direct appeal to the Court of Appeals, the conviction becomes final when the time for filing a direct appeal expires.” United States v. Gilbert, 807 F.3d 1197, 1199 (9th Cir. 2015). Here, Movant did not appeal, and his time to do so expired 14 days after entry of judgment on the docket on March 29, 2000, Fed. R. App. P. 4(b)(1)(A) and (b)(6), or on Wednesday, April 12, 2000.
In 2000, Fed. R. App. P. 26 excluded some weekends and holidays, but that was limited to periods shorter than 7 days. See Fed. R. App. P. 26, Advisory Committee Notes to 2002 Amendments.
Thus Movant's one year expired on Thursday, April 12, 2001. On this basis, Movant's original Motion (Doc. 1), filed September 16, 2020 was over 19 years delinquent.
Alternatively, the limitations period can commence from “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.” 28 U.S.C. § 2255(f)(3). Here, Movant's claim is based on a series of Supreme Court decisions:
13. In Johnson v. United States, 576 U.S. 591 (2015), the Supreme Court held that the similarly-worded residual clause in 18 U.S.C. § 924(e), the Armed Career Criminal Act, was unconstitutionally vague.
14. In Davis v. United States, 139 S.Ct. 2319 (2019), the Supreme Court applied the reasoning of Johnson to hold that the residual clause of § 924(c)(3)(B) is also unconstitutionally vague. See 139 S.Ct. at 2325-27. 15. Davis, like Johnson, applies retroactively to cases that are on collateral review. See Welch v. United States, 136 S.Ct. 1257 (2016).
15. Davis, like Johnson, applies retroactively to cases that are on collateral review. See Welch v. United States, 136 S.Ct. 1257 (2016). Thus Mr. Caddo's § 924(c) conviction can stand only if second-degree murder is a “crime of violence” under the elements clause.
16. In Borden v. United States, 141 S.Ct. 1817 (2021), the Supreme Court held that a crime does not qualify as a crime of violence if it punishes the reckless use of force against the person of another. See 141 S.Ct. at 1825-28. A crime qualifies as a crime of violence if it punishes only the purposeful or knowing use of force. Id. at 1828.
17. In Borden, the Court noted that some jurisdictions “recognize mental states (often called ‘depraved heart' or ‘extreme recklessness') between recklessness and knowledge.” Id. at 1825 n.4. The Court did not decide in Borden “whether offenses with those mental states fall within the elements clause.” Id. However, in United States v. Begay, 934 F.3d 1033 (9th Cir. 2019), the Ninth Circuit held that second-degree murder under 18 U.S.C. § 1111, which “may be committed recklessly-with a depraved heart mental state-and need not be committed willfully or intentionally,” is not a crime of violence under § 924(c). 934 F.3d at 1040-41.
18. Because second-degree murder is not a crime of violence under the elements clause, Mr. Caddo's § 924(c) conviction is illegal.(Amend. Mot., Doc. 9 at 3.)
Subsequent to Movant's Amended Motion, the Ninth Circuit reconsidered en banc the panel decision in Begay and concluded that second-degree murder did constitute a crime of violence under § 924(c) despite its “recklessness” mens rea. United States v. Begay, 33 F.4th 1081, 1094 (9th Cir.), cert. denied, 143 S.Ct. 340 (2022).
The Ninth Circuit found that second-degree murder required the kinds of recklessness that rises to the level of extreme disregard of human life, not just the “simple recklessness” at issue in Borden, and thus that it qualified as a crime of violence. Begay, 33 F.4th at 1093.
The undersigned knows of no authority permitting the court to eschew a statute of limitations defense to dispose of a case on its merits.
For purposes of a delayed start under § 2255(f)(3), it is decisions of the Supreme Court which are relevant. Movant's claim cannot rely on a right recognized in Borden, because he asserts a right which Borden expressly declined to decide whether to recognize.
Thus, the latest of the Supreme Court decisions on which Movant's claim can be said to rely is Davis, which was issued June 24, 2019. Assuming arguendo (in Movant's favor) that Davis has been made retroactively applicable on collateral review, Movant's one year would have connected running on June 25, 2019 when Davis was decided, see Dodd v. United States, 545 U.S. 353, 357 (2005) (limitations period runs from recognition of right, not recognition of retroactivity), and expired on Wednesday, June 24, 2020, making his even his original Motion (Doc. 1) some 84 days delinquent. Thus, his Amended Motion (Doc. 9), filed July 5, 2021, even if deemed to relate back to his original Motion, see Fed.R.Civ.P. 15(c), would still be untimely.
See Dodd v. United States, 545 U.S. 353, 357 (2005) (limitations period runs from recognition of right, not recognition of retroactivity).
Movant cites Welch for the proposition that Borden has been made retroactively applicable on collateral review. But, Welch was decided on April 18, 2016, over three years before Davis. Moreover it only resolved whether Johnson was retroactively applicable. Of course, a retroactivity determination need not be made by the Supreme Court, just “a court.” Dodd v. United States, 545 U.S. 353, 358 (2005) (treating a retroactivity determination by the Eleventh Circuit as qualifying). But see Dodd, 545 U.S. at 365 n. 4 (Stevens, J., dissenting) (disagreeing with the majority's assumption that lower courts may make the retroactivity determination for purposes of what is now codified as section 2255(f)(3), and arguing that the prior prepositional phrase “by the Supreme Court” contained in section 2255(f)(3) modifies the phrase “made retroactively applicable to cases on collateral review”). See also Jones v. United States, 2021 WL 1749897, at *2 (S.D. Cal. May 4, 2021) (concluding Davis applies retroactively, and citing cases from other circuits).
2. No Equitable Tolling
In U.S. v. Battles, 362 F.3d 1195 (9th Cir. 2004), the Ninth Circuit held the statute of limitations under 28 U.S.C. § 2255 may be equitably tolled.
A § 2255 movant is entitled to equitable tolling “only if he shows ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing.” The movant must show that the extraordinary circumstances “ ‘were the cause of his untimeliness.' ”United States v. Buckles, 647 F.3d 883, 889 (9th Cir. 2011) (citations omitted). Movant bears the burden of proof on the existence of cause for equitable tolling. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
In the en banc decision in Smith v. Davis, 953 F.3d 582 (9th Cir. 2020), the Ninth Circuit resolved a discrepancy between prior decisions and eschewed the “stop-clock” method of applying equitable tolling (that requires diligence only during the course of the extraordinary circumstance, and not thereafter, resulting in a day-for-day pause of the running of the limitations clock). Instead, the Court adopted a rule which conditions equitable tolling on a question of causation. “As we have previously described it, whether an impediment caused by extraordinary circumstances prevented timely filing is a ‘causation question' that requires courts to evaluate a petitioner's diligence in all time periods-before, during, and after the existence of an “extraordinary circumstance”-to determine whether the extraordinary circumstance actually did prevent timely filing.” Id. at 595.
In his original Motion, Movant argued that any delay in bringing his original Motion was due to: (1) a COVID-19 related lockdown at his prison, commencing on March 1, 2020, and continued at least in a modified form until he filed his motion; and (2) the failure of the Federal Public Defender's Office's to alert him to his eligibility for relief under Davis. (Orig. Mot., Doc. 1 at 4.) Movant does not repeat those arguments in his Amended Motion. Nonetheless, Respondent argues Movant's contentions are not sufficiently specific to meet his burden of proof. (Response, Doc. 25 at 3-4.)
Movant's complaint about lack of notice from counsel does not establish equitable tolling. Although an attorney's behavior can establish the extraordinary circumstances required for equitable tolling, mere negligence or professional malpractice is insufficient. Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir.2001). See also Holland v. Florida, 130 S.Ct. 2549, 2564 (2010) (concluding that a “garden variety” claim of “excusable neglect” or attorney misconduct such as miscalculation of a deadline did not justify equitable tolling, but that an attorney's repeated failures to respond to a client's inquiries over a period of years, and demands for timely action, might establish equitable tolling). Movant's arguments offer nothing more than a suspicion that counsel may have been negligent in not advising him he was entitled to relief. However, given the clear holding of Begay (and Movant's concession that his claim is without merit), no prejudice resulted from any such negligence.
Movant's complaint about a lockdown does not establish equitable tolling because Movant proffers nothing to show: (a) that he was diligent in filing his Motion in the eight months between June 14, 2019 (when Davis was decided) and March 1, 2020 when he was subjected to a lockdown; and (b) that he was diligent in filing his Motion in the six months between March 1, 2020 and September 16, 2020 when he finally filed his Motion. With regard to the latter, Movant offers nothing to show that he made any effort to pursue his motion and was nonetheless thwarted by the restrictions from the lockdown, particularly where he acknowledges that the restrictions were eventually reduced. Indeed, Movant proffers no explanation of when he actually undertook to file his motion, or what he lacked in his ability to complete its filing due to the lockdown.
Movant's Motion is untimely, and must be dismissed with prejudice.
B. PROCEDURAL DEFAULT
Respondent argues Movant has procedurally defaulted his claim by failing to raise it on direct appeal. Addressing the procedural default defense would require evaluating whether the unavailability or futility of Movant's claim constituted cause and prejudice, or established actual innocence of his non-capital sentence, which would all involve addressing the merits of his claim. Because the denial of the Motion is a foregone conclusion after the en banc decision in Begay, 33 F.4th at 1094, addressing the merits is easier than addressing as a prefatory-matter the procedural default questions, the undersigned proceeds to the merits. See Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) (authorizing avoidance of procedural default and denial where “clearly not meritorious”); and United States v. Seng Chen Yong, 926 F.3d 582, 590 (9th Cir. 2019) (applying Franklin to § 2255 motion to vacate).
C. MERITS
Movant's Motion is based on the premise that second-degree murder does not qualify as a crime of violence under § 924(c). Here, as Movant concedes in his Notice of No Reply (Doc. 27), under the en banc decision in Begay, second-degree murder in violation of 18 U.S.C. § 1111, the predicate crime for Movant's § 924(c) conviction, remains a crime of violence. Accordingly, Movant's Motion is without merit, and if not dismissed as untimely, should be denied as without merit.
IV. CERTIFICATE OF APPEALABILITY
The standard for issuing a certificate of appealability (“COA”) is whether the applicant has “made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. “If the court issues a certificate, the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” 28 U.S.C. § 2253(c)(3). See also Rules Governing § 2255 Cases, Rule 11(a).
Assuming the recommendations herein are followed in the district court's judgment, that decision will be in part on procedural grounds, and in part on the merits. Under the reasoning set forth herein, jurists of reason would not find it debatable whether the district court was correct in its procedural ruling, and jurists of reason would not find the district court's assessment of the constitutional claims debatable or wrong. Accordingly, to the extent that the Court adopts this Report & Recommendation as to the Motion to Vacate, a certificate of appealability should be denied.
V. RECOMMENDATION
IT IS THEREFORE RECOMMENDED:
(A) Movant's Amended Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 9) be either DISMISSED WITH PREJUDICE as untimely, or DENIED on the merits.
(B) To the extent the foregoing findings and recommendations are adopted in the District Court's order, a Certificate of Appealability be DENIED.
VI. EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.
However, pursuant to Rule 72(b), Federal Rules of Civil Procedure , the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See also Rule 10, Rules Governing Section 2255 Proceedings. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”