Opinion
3:21-cv-00959-HL
03-23-2022
MELVIN EDWARD JEFFERSON, Petitioner, v. DEWAYNE HENDRICKS, Respondent.
Melvin Edward Jefferson Petitioner, Pro Se Scott Erik Asphaug Acting United States Attorney Amy E. Potter, Assistant United States Attorney Attorneys for Respondent
Melvin Edward Jefferson
Petitioner, Pro Se
Scott Erik Asphaug
Acting United States Attorney
Amy E. Potter, Assistant United States Attorney
Attorneys for Respondent
FINDINGS AND RECOMMENDATION
ANDREW HALLMAN, United States Magistrate Judge.
Petitioner brings this habeas corpus case pursuant to 28 U.S.C. § 2241 challenging the legality of a 2018 sentence he received in the District of Wyoming. For the reasons that follow, the Petition for Writ of Habeas Corpus (#1) should be dismissed.
BACKGROUND
On November 17, 2017, Petitioner committed an armed robbery of an Arby's restaurant in Gillette, Wyoming. As a result, the Government indicted him for Hobbs Act robbery in violation of 18 U.S.C. § 1951(a), brandishing a firearm during a crime of violence in violation of 18 U.S.C. § 924(c), and being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Petitioner pled guilty to all three offenses, and the Presentence Report (“PSR”) calculated Petitioner's base offense level to be 24. This calculation included a determination that a 2005 robbery conviction from Laramie County, Wyoming as well as a 2008 conviction for conspiracy to commit robbery in Laramie County both qualified as “crimes of violence” under the Sentencing Guidelines so as to cumulatively raise his base offense level by four points. As a result, the PSR recommended a cumulative sentencing range of 57-71 months imprisonment on the Hobbs Act robbery and felon in possession charges, and a consecutive 84-month term of imprisonment for brandishing a firearm in a crime of violence, resulting in a total recommended sentencing range of 141-155 months of imprisonment. Consistent with the PSR's recommendation, the trial court sentenced Petitioner to 150 months in prison.
Petitioner did not take a direct appeal and, instead, proceeded to file a 28 U.S.C. § 2255 motion. The challenges he raised in his § 2255 motion included two claims relevant to this habeas case: (1) his trial attorney was ineffective for failing to object to the PSR because his Laramie County convictions from 2005 and 2008 do not qualify as “crimes of violence” where neither crime required proof of violent physical force; and (2) Hobbs Act robbery is also not a crime of violence such that his § 924(c) conviction for brandishing a firearm during a crime of violence should be set aside. On July 20, 2020, the U.S. District Court for the District of Wyoming disagreed and denied relief on all of Petitioner's claims. See United States v. Jefferson, No. 2:18-cr00008-SWS (D. Wy. 2018).
On November 3, 2021, Petitioner, now incarcerated at FCI Sheridan, filed this 28 U.S.C. § 2241 habeas corpus case in which he once again seeks relief from his federal sentence. Much like his § 2255 motion, he asserts that: (1) his Laramie County robberies are not crimes of violence that justify an elevated offense level under the Sentencing Guidelines; and (2) his Hobbs Act robbery is also not a crime of violence, therefore it cannot support his § 924(c) conviction for brandishing a firearm. Respondent asks the Court to dismiss the Petition for lack of jurisdiction.
DISCUSSION
“A federal prisoner who seeks to challenge the legality of confinement must generally rely on a § 2255 motion to do so.” Marrero v. Ives, 682 F.3d 1190, 1192 (9th Cir. 2012). However, under the “savings clause” or “escape hatch” of § 2255(e), an adult in federal custody may seek relief pursuant to 28 U.S.C. § 2241 “if, and only if, the remedy under § 2255 is ‘inadequate or ineffective to test the legality of his detention.'” Id. (citing Stephens v. Herrera, 464 F.3d 895, 897 (9th Cir. 2006). A litigant satisfies the savings clause of § 2255(e) where he: "(1) makes a claim of actual innocence, and (2) has not had an unobstructed procedural shot at presenting that claim." Stephens, 464 F.3d at 898 (internal quotation marks omitted). The two factors to consider when assessing whether Petitioner had an unobstructed procedural opportunity to present his claim of innocence are: (1) whether the legal basis for Petitioner's claim did not arise until the conclusion of his direct appeal and first 28 U.S.C. § 2255 motion; and (2) whether the applicable law changed in any relevant way after the conclusion of Petitioner's first § 2255 motion. Harrison v. Ollison, 519 F.3d 952, 960 (9th Cir. 2008).
According to Petitioner, he is actually innocent of his sentence. He reasons that his robbery convictions from Laramie County do not constitute qualifying predicate offenses that justified an increase in his base offense level from 20 to 24. He claims that where the Supreme Court recently clarified in the context of the Armed Career Criminal Act that prior offenses with a mens rea of recklessness do not constitute crimes of violence, Borden v. United States, 141 S.Ct. 1817, 1834 (2021), his Laramie County convictions do not meet the mens rea required to qualify as predicate offenses. Similarly, he asserts that Hobbs Act robbery also does not require a mens rea sufficient to constitute a crime of violence. As such, he concludes that his Hobbs Act robbery cannot support his firearms conviction under 18 U.S.C. § 924(c).
Petitioner already presented the substance of these claims to the District of Wyoming in his 28 U.S.C. § 2255 motion, albeit without the benefit of Borden. Assuming Borden qualifies as a new legal development to justify the conclusion that Petitioner never had an unobstructed procedural opportunity to present his claims of innocence, he still cannot establish jurisdiction to challenge his sentence in a habeas corpus proceeding.
In Allen v. Ives, 950 F.3d 1184 (9th Cir. 2020), the Ninth Circuit held that federal prisoners may assert claims of actual innocence in the context of a career offender sentencing enhancement so as to establish 28 U.S.C. § 2241 habeas corpus jurisdiction. However, it specifically limited Allen to habeas corpus petitioners who received a mandatory sentence under a mandatory sentencing scheme. Shepherd v. Unknown Party, 5 F.4th 1075 (9th Cir. 2021). Because the Supreme Court rendered the Sentencing Guidelines advisory in 2005 in United States v. Booker, 543 U.S. 220 (2005), Guidelines sentences imposed thereafter do not fall under a mandatory sentencing scheme. In this respect, where the District of Wyoming sentenced Petitioner under advisory Sentencing Guidelines as to his Hobbs Act robbery (Count One) and felon in possession (Count Three) convictions in this case, Petitioner cannot state a claim of actual innocence so as to avail himself of the savings clause of 28 U.S.C. § 2255(e).
The District of Wyoming did, however, impose a mandatory minimum 84-month sentence with respect to Petitioner's § 924(c) conviction (Count Two) for brandishing a firearm in connection with his Hobbs Act robbery. See 18 U.S.C. § 924(c)(1)(A)(ii). As such, Shepherd does not preclude a claim of actual innocence as to this component of Petitioner's sentence. However, it remains the law of both the Ninth and Tenth Circuits that Hobbs Act robbery constitutes a crime of violence. United States v. Dominguez, 954 F.3d 1251, 1260-61 (9th Cir. 2020); United States v. Melgar-Cabrera, 892 F.3d 1053, 1062 (10th Cir. 2018). It is not the province of a federal district court to overturn these precedents. See also Hart v. Massanari, 266 F.3d 1155, 1175 (9th Cir. 2001) (district courts have no choice but to follow circuit authority). Consequently, Petitioner cannot establish that he is actually innocent of his 84-month mandatory minimum sentence so as to invoke habeas corpus jurisdiction.
In United States v. Taylor, 979 F.3d 203 (2020), the Fourth Circuit held that Attempted Hobbs Act Robbery does not constitute a crime of violence under § 924(c). Although the Supreme Court granted certiorari in that case, a stay is not appropriate in Petitioner's action where his Hobbs Act conviction involved a completed robbery, not an attempted one. As the Fourth Circuit stated, “unlike substantive Hobbs Act robbery, attempted Hobbs Act robbery does not invariably require the use, attempted use, or threatened use of physical force.” Id. at 208; see also United States v. Mathis, 932 F.3d 242, 266 (4th Cir. 2019) (holding that Hobbs Act robbery is a crime of violence).
RECOMMENDATION
The Amended Petition for Writ of Habeas Corpus (ECF #4) should be dismissed for lack of jurisdiction, and the Court should enter a judgment dismissing this case. The Court should also decline to issue a Certificate of Appealability on the basis that Petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2)
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
A party's failure to timely file objections to any of these findings will be considered a waiver of that party's right to de novo consideration of the factual issues addressed herein and will constitute a waiver of the party's right to review of the findings of fact in any order or judgment entered by a district judge. These Findings and Recommendation are not 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 judgment.