Opinion
No. CV-16-02179-PHX-SRB (BSB) No. CR-06-00381-PHX-SRB
12-18-2018
Jose Dominguez-Rojas, Movant/Defendant, v. United States of America, Respondent/Plaintiff.
REPORT AND RECOMMENDATION
Movant/Defendant Jose Dominguez-Rojas, through counsel, has filed a second amended motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. (Doc. 7.) Respondent/Plaintiff, the United States of America, has filed a response asserting that the second amended motion should be denied. (Doc. 19.) The government also filed a notice of supplemental authority. (Doc. 20.) Defendant has not filed a reply in support of his second amended motion and the time to do so has passed. For the reasons set forth below the Court recommends that the second amended motion be denied. / / / / / /
On June 30, 2016 and September 12, 2016. Defendant, proceeding pro se, filed a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255, and an amended § 2255 motion. (Docs. 1, 4.) Defendant, through counsel, filed the pending second amended motion on January 5, 2017. (Doc. 7.) In applying the statute of limitations, the Court uses June 30, 2016, the filing date of Plaintiff's original § 2255 motion, as the filing date for the second amended motion.
Citations to "Doc." are to filings in CV-16-2179-SRB (BSB). Citations to "CR Doc." are to filings in CR-06-00381-PHX-SRB.
I. Factual and Procedural Background
A. Charges, Trial, and Sentencing
On April 11, 2006, an indictment was returned against Defendant, in the District of Arizona, charging him with the following offenses: (1) conspiracy to commit hostage taking, in violation of 18 U.S.C. § 1203 (Count 1); (2) hostage taking, in violation of 18 U.S.C. § 1203 (Count 2); (3) harboring illegal aliens, in violation of 8 U.S.C. § 1324(a)(1)(A)(iii) (Count 3); and (4) possessing a firearm in connection with a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count 4). (CR Doc. 11, Doc. 19, Ex. A.) Count 4 referred to the crime of hostage taking (charged in Count 2) as the underlying crime of violence. (Doc. 19, Ex. A.)
On April 3, 2009, Defendant pleaded guilty to Count 4, possessing a firearm in connection with a crime of violence in violation of 18 U.S.C. § 924(c). (Doc. 19, Ex. B.) In the plea agreement, the parties stipulated to a sentence between five and ten years' imprisonment. (Id. at 3.) The plea agreement also stipulated that the Court had the discretion to depart from the sentencing guidelines range to impose a sentence within the agreed-upon range. (Id.) As part of the plea agreement, Defendant agreed to waive his rights to appeal and to collaterally attack his conviction and sentence under 28 U.S.C. § 2255. (Id. at 4.) On June 24, 2009, the Court sentenced Defendant to 84 months' imprisonment. (Doc. 19, Ex. C.) The Court ordered that this sentence run consecutively to any sentence imposed in Maricopa County Superior Court case number CR2006-117667-001-DT. (Id.) Defendant did not appeal his conviction or sentence. (Doc. 7 at 2.)
B. The Second Amended § 2255 Motion
In his pending motion, Defendant argues that his conviction under § 924(c) is invalid following the Supreme Court's decision in Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551 (2015). (Doc. 7.) Defendant argues that the Court should vacate his conviction under § 924(c) for possession of a firearm "during and in relation to a crime of violence" because: (1) the "residual clause" of § 924(c)(3)(B) is unconstitutionally vague under the reasoning of Johnson and, therefore, his conviction for hostage taking under 18 U.S.C. § 1203 no longer qualifies as a "crime of violence" under that clause; and (2) a conviction for hostage taking under 18 U.S.C. § 1203 does not qualify as a "crime of violence" under the "elements" clause of § 924(c)(3)(A). (Doc. 7 at 3-4.) Thus, Defendant argues that his conviction for hostage taking under 18 U.S.C. § 1203 was not a "crime of violence" that triggered the application of § 924(c).
The Court stayed this proceeding pending the Supreme Court's decision on review of Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), cert granted, ___ U.S.___, 137 S. Ct. 31 (2016). (Doc. 15.) That order directed the government to file its answer not later than thirty days after the Supreme Court issued its decision in Sessions v. Dimaya, ___U.S.___, 138 S. Ct. 1204 (2018). (Id.) After Dimaya was decided, the government filed its response. (Docs. 18, 19.) Therefore, the Court considers Defendant's motion.
In response, the government argues that Defendant is not entitled to relief because his second amended motion is untimely. (Doc. 19 at 5-8.) The government alternatively argues that Defendant's claim is procedurally barred, lacks merit, or that Defendant's right to bring his claim in a § 2255 motion was waived by his plea agreement. (Id. at 8-20.) Defendant has not filed a reply and, therefore, has not responded to these arguments. As discussed below, the Court concludes that the second amended motion is untimely and, therefore, does not consider the government's remaining arguments.
II. Statute of Limitations
Pursuant 28 U.S.C. § 2255(f), the statute of limitations for a § 2255 motion is one year, which runs from the latest of four possible dates. 28 U.S.C. § 2255(f). Of these possible dates, two are relevant here. The first relevant date is "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255(f)(1). Defendant's conviction became final in 2009, and he filed his original § 2255 motion several years later, in June 2016. (Doc. 1.) Therefore, his second amended motion is untimely under § 2255(f)(1). (See Doc. 19, Exs. B, C.) The second relevant date is "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). Thus, a right newly recognized by the Supreme Court may provide a later starting date for the one-year statute of limitations. Defendant argues that the Supreme Court's decision in Johnson provides a later starting date for the statute of limitations.
A. 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, 135 S. Ct. 2551. 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 the "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" is unconstitutionally vague because it "denies fair notice to defendants and invites arbitrary enforcement by judges." Johnson, 135 S. Ct. at 2557, 2563 (holding that increasing a defendant's sentence under the ACCA's residual clause violated the Due Process Clause). The Court clarified that its decision did not "call into question . . . the remainder of the ACCA's definition of a violent felony." Id. at 2563. In Welch v. United States, the Supreme Court held that Johnson could be applied retroactively to cases on collateral review. Welch, 136 S. Ct. 1257, 1265 (2016).
The Supreme Court has considered the application of its holding in Johnson in other contexts. In Beckles v. United States, 137 S. Ct. 886 (2017), the Supreme Court considered whether the "residual clause" in the definition of "crime of violence" in the prior career offender provision of the Sentencing Guidelines, U.S.S.G. § 4B1.2(a), was unconstitutionally vague. The Court concluded that, because the Guidelines "merely guide the exercise of a court's discretion in choosing an appropriate sentence within the statutory range," they are not subject to vagueness challenges. Id. at 892. Therefore, the Court held that "§ 4B1.2(a)'s residual clause is not void for vagueness." Id. at 895.
In Dimaya, the Supreme Court considered whether the "residual clause" in an immigration statute, 18 U.S.C. § 16(b), was unconstitutionally vague under the reasoning in Johnson. Dimaya, 138 S. Ct. 1204 (2018). Section 16(b) defines "crime of violence" with language that is nearly identical to the ACCA's "residual clause." Id. at 1210-11. The Court held that the definition of "crime of violence" in § 16(b)'s "residual clause" is unconstitutionally vague because it creates "more unpredictability and arbitrariness than the Due Process Clause tolerates." Dimaya, 138 S. Ct. at 1216 (internal quotation marks omitted).
B. Timeliness of Defendant's Motion
Defendant's second amended motion raises a single claim asserting that his 18 U.S.C. § 924(c) conviction for using a firearm during a crime of violence is invalid because, following the reasoning in Johnson, hostage taking is not a crime of violence under that statute. (Doc. 7 at 3.) Section 924(c)(1)(A) provides for increased penalties for a defendant "who, during and in relation to any crime of violence . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm." 18 U.S.C. § 924(c)(1)(A). Section 924(c)(3) defines a "crime of violence" as an offense that is a felony and "(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another," (the "elements clause") 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" (the "residual clause"). See id. at § 924(c)(3)(A) and (B); see also United States v. Watson, 881 F.3d 782, 784 (9th Cir. 2018) (describing Sections A and B as the "elements" and "residual" clauses).
Defendant argues that his motion is timely under § 2255(f)(3) because Johnson recognized a new substantive rule of law, which was made retroactive to cases on collateral review in Welch, and his original § 2255 motion was filed on June 30, 2016, within a year of the decision in Johnson. (Doc. 7 at 5.) The government argues that § 2255(f)(3) does not apply because the Supreme Court has not recognized the particular right that Defendant is claiming—that the residual clause in the definition of "crime of violence" in § 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague. (Doc. 19 at 6; Doc. 20 (citing United States v. Blackstone, 903 F.3d 1120 (9th Cir. 2018).) The Court agrees with the government.
In Blackstone, the defendant was sentenced in May 2000 under the then-mandatory Sentencing Guidelines to concurrent 230-month sentences for two Hobbs Act robbery convictions, and a consecutive 60-month sentence for use of a firearm during a crime of violence, in violation of 18 U.S.C. § 924. Blackstone, 903 F.3d at 1023. In determining the defendant's sentences, the district court concluded that the defendant qualified as a career offender under Sentencing Guidelines § 4B1.1 because he had previously been convicted of two prior felony crimes of violence. Id. The district court also concluded that the firearm conviction carried a mandatory consecutive sentence of 60 months' imprisonment. Id. (citing 18 U.S.C. § 924(c)(1)).
Years later, but within one year of the Supreme Court's decision in Johnson, the defendant filed a motion pursuant to 28 U.S.C. § 2255. Blackstone, 903 F.3d at 1023. Defendant argued that Johnson applied retroactively on collateral review and rendered the residual clauses of § 4B1.2 and 18 U.S.C. § 924(c) void for vagueness and, therefore, his convictions should be vacated. Id. at 1024. The district court found the defendant's § 2255 motion timely but denied the motion on the merits. Id.
On appeal, the Ninth Circuit analyzed the timeliness of the defendant's motion. Id. at 1024-1028. The court concluded that the motion was filed more than one year after the defendant's conviction became final and, therefore, was untimely under 28 U.S.C. § 2255(f)(1). Id. at 1024. The court then considered whether defendant's claims were timely under § 2255(f)(3) based on "'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.'" Id. (quoting 18 U.S.C. § 2255(f)(3)). The defendant argued that Johnson recognized a new rule that is retroactively applicable on collateral review, and therefore, his claims were timely. Blackstone, 903 F.3d at 1025.
The Ninth Circuit rejected this argument as to both claims in Blackstone holding that "[the defendant's] motion is not timely because the Supreme Court has not yet recognized the right that [the defendant] seeks to assert." Id. at 1026, 1027. Specifically, the court found that "Johnson did not recognize a new right applicable to the mandatory Sentencing Guidelines on collateral review." Id. at 1028. The court found that the same reasoning applied to the defendant's argument that Hobbs Act robbery was not a crime of violence for purposes of 18 U.S.C. § 924(c) and stated that "[t]he Supreme Court has not recognized that § 924(c)'s residual clause is void for vagueness in violation of the Fifth Amendment." Id. Therefore, the Ninth Circuit held that § 2255(f)(3) did not apply and the defendant's § 2255 motion challenging the mandatory Sentencing Guidelines and § 924(c) was time-barred. Id. at 1028 (stating that "[t]he Supreme Court may hold in the future that Johnson extends to sentences imposed when the Sentencing Guidelines were mandatory or pursuant to 18 U.S.C. § 924(c), but until then [defendant's] motion is untimely").
As the court concluded in Blackstone, § 2255(f)(3) does not apply because the Supreme Court has not recognized the right Defendant seeks to assert—that § 924(c)'s "residual clause" is unconstitutionally vague. Thus, § 2255(f)(1) supplies the starting date for the one-year statute of limitations and Defendant's second amended § 2255 motion is untimely because it was filed more than one year after Defendant's conviction became final.
III. Conclusion
For the reasons set forth above, the Court recommends that the second amended § 2255 motion be denied as untimely.
Accordingly,
IT IS RECOMMENDED that the Second Amended Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 7) be DENIED as untimely.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED.
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) of the 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); Fed. R. Civ. P. 6, 72. The parties have fourteen days within which to file a response to the objections. Failure to file timely 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 to file timely objections to any factual determinations of the Magistrate Judge may 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 Fed. R. Civ. P. 72.
Dated this 18th day of December, 2018.
/s/_________
Bridget S. Bade
United States Magistrate Judge