Opinion
2:13-cr-00186-GMN-VCF-1
12-16-2021
UNITED STATES OF AMERICA, Respondent/Plaintiff, v. ABDUL HOWARD, Petitioner/Defendant.
ORDER
GLOR M. NAVARRO, DISTRICT JUDGE UNITED STATES DISTRICT COURT
Pending before the Court are Petitioner Abdul Howard's (“Petitioner's”) Motions to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255, (ECF Nos. 337, 363, 368). The Government filed Responses, (ECF Nos. 351, 365, 371), and Petitioner filed Replies, (ECF Nos. 359, 366, 374). For the reasons discussed below, the Court DENIES Petitioner's Motions.
Petitioner filed the first 2255 Motion, (ECF No. 337), at issue in this case pro se; the Motion was fully briefed before the Court appointed Counsel. (See Order Appointing Counsel, ECF No. 362). Petitioner's newly appointed counsel filed the second 2255 Motion, (ECF No. 363). After the second Motion was also fully briefed, the Court allowed Petitioner's new counsel to file the Amended 2255 Motion, (ECF No. 368). (See Order, ECF No. 367) (“Defendant has three weeks from the date of this Order to file an Amended Petition.”). For the purposes of this Order, the Court will primarily address the arguments in the Amended 2255 Motion and associated briefing because the Amended 2255 Motion and its briefing incorporate all of the arguments from the prior two Motions.
I. BACKGROUND
On June 5, 2014, a jury found Petitioner guilty on Counts 1-27 of the Superseding Indictment: 14 counts of Interference with Commerce by Robbery (Hobbs Act Robbery) in violation of 18 U.S.C. § 1951; 12 counts of Possession of a Firearm During, in Relation to, and in Furtherance of a Crime of Violence in violation of 18 U.S.C. § 924(c)(1)(A); and one count of Felon in Possession of a Firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (See Mins. Proceedings, ECF No. 187); (J., ECF No. 252). On January 8, 2015, Petitioner was sentenced to 15 years custody as to Count 25 (Felon in Possession of a Firearm), to run concurrently to all other counts; 240 months custody as to Count 27 (Hobbs Act Robbery), to run concurrently to all other counts; life imprisonment as to Counts 1, 3, 5, 7, 9, 11, 13, 15, 17, 19, 21, 23, and 26 (Hobbs Act Robbery), to run concurrently to all other counts; and life imprisonment as to Counts 2, 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, and 24 (Possession of a Firearm During, in Relation to, and in Furtherance of a Crime of Violence), to run consecutively to all other counts. (J., ECF No. 252).
In June 2019, the Supreme Court issued its decision in United States v. Davis, which considered the constitutionality of 18 U.S.C. § 924(c). 139 S.Ct. 2319 (2019). Section 924(c) generally prohibits the use or carrying of a firearm in relation to a “crime of violence, ” and it imposes mandatory minimum sentences that must run consecutive to any other sentence. The statute defines a “crime of violence” as:
An offense that is a felony and (A) has 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). “Courts generally refer to the ‘(A)' clause of section 924(c)(3) as the ‘force clause' and to the ‘(B)' clause of section 924(c)(3) as the ‘residual clause.'” United States v. Bell, 158 F.Supp.3d 906, 910 (N.D. Cal. Jan. 28, 2016). In Davis, the Supreme Court struck down the residual clause as unconstitutionally vague. 139 S.Ct. at 2335-36 (2019).
Also in June 2019, the Supreme Court issued its decision in Rehaif v. United States, which overruled longstanding Ninth Circuit precedent regarding the mens rea element under 18 U.S.C. §§ 922(g) and 924(a)(2). Rehaif, 139 S.Ct. 2191, 2200 (2019). Now, in a prosecution under 18 U.S.C. §§ 922(g) and 924(a)(2), the Government must prove not only that “the defendant knew that he possessed a firearm, [but also] that he knew he belonged to the relevant category of persons barred from possessing a firearm.” Id.
II. LEGAL STANDARD
Under 28 U.S.C. § 2255, a petitioner may file a motion requesting the sentencing Court to vacate, set aside, or correct his sentence. 28 U.S.C. § 2255(a). Such a motion may be brought on the following grounds: “(1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack.” Id.; see United States v. Berry, 624 F.3d 1031, 1038 (9th Cir. 2010). “[A] district court may deny a Section 2255 motion without an evidentiary hearing only if the movant's allegations, viewed against the record, either do not state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal.” United States v. Burrows, 872 F.2d 915, 917 (9th Cir. 1989).
III. DISCUSSION
The present Motion challenges the validity of Petitioner's convictions for: (1) Possession of a Firearm During, in Relation to, and in Furtherance of a Crime of Violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii) in light of Davis; and (2) Felon in Possession of a Firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), in light of Rehaif. (Am. Mot. Vacate 3:6-26, ECF No. 368). Additionally, Petitioner claims that his trial and appellate counsel were ineffective. (Id. 4:13-20). The Court will address each claim in turn.
A. Davis Claim
Petitioner claims that the Davis decision affects his convictions in two ways. First, Petitioner asserts that, in light of Davis, his § 924(c) conviction for Possession of a Firearm During, in Relation to, and in Furtherance of a Crime of Violence should be vacated because Hobbs Act Robbery is not a crime of violence. (Am. Mot. Vacate 8:20-22, ECF No. 368). Second, Petitioner argues that his life sentence enhancements under 18 U.S.C. § 3559(c)(1) should be vacated because § 3559(c)(1) contains nearly identical language to the unconstitutional residual clause in Davis. (Id. 14:10-17:23). The Court will first address Petitioner's claims concerning his § 924(c) convictions, before turning to Petitioner's § 3559(c)(1) arguments.
1. Petitioner's § 924(c) Convictions
Petitioner explains that the underlying crime of violence for his § 924(c) convictions is Hobbs Act Robbery, which qualified as a crime of violence under the now unconstitutional residual clause. (Id. 8:20-10:2). Petitioner also argues that Hobbs Act Robbery does not qualify as a crime of violence under § 924(c)'s remaining force clause. As such, Petitioner claims that Hobbs Act Robbery cannot be a crime of violence, and thus, he did not commit the crime of violence necessary to sustain a § 924(c) conviction. (Id. 10:3-14:9).
However, the Ninth Circuit has unequivocally held that Hobbs Act Robbery constitutes a crime of violence under § 924(c)'s force clause. United States v. Dominguez, 954 F.3d 1251, 1255, 1262 (9th Cir. 2020) (“Hobbs Act Robbery is a crime of violence under 18 U.S.C. § 924(c)(3)(A) . . . because it's a felony that ‘has an element the use, attempted use, or threatened use of physical force against the person or property of another.'”); United States v. Mendez, 992 F.2d 1488, 1491 (9th Cir. 1993) (“Robbery indisputably qualifies as a crime of violence.”).Since Hobbs Act Robbery is a crime of violence, Petitioner's § 924(c) conviction for Possession of a Firearm During, in Relation to, and in Furtherance of a Crime of Violence is proper. Accordingly, the Court denies Petitioner's Motion as to this claim.
A petition for certiorari has been filed in Dominguez. However, the appeal only challenges the Ninth Circuit holding that attempted Hobbs Act Robbery is a crime of violence, not that completed Hobbs Act Robbery is a crime of violence. See Dominguez v. United States, 954 F.3d 1251 (9th Cir. 2020), petition for cert filed, (No. 20-1000). Because the present case concerns a completed Hobbs Act Robbery, any final disposition of Dominguez will not affect this Order. (See Superseding Indictment, ECF No. 20) (charging Defendant with Hobbs Act Robbery, not attempted Hobbs Act Robbery).
2. Petitioner's Sentence Under § 3559(c)(1)
Under 18 U.S.C. § 3559(c)(1), or the “federal three-strikes law, ” a defendant convicted of a serious violent felony receives a sentence enhancement of mandatory life imprisonment when the defendant was previously convicted of at least two other serious violent felonies, either at the state or federal level. Morrison v. United States, No. 95-cr-0708-DMS, 2019 WL 2472520, at *3 (S.D. Cal. June 12, 2019) (citing United States v. Kaluna, 192 F.3d 1188, 1195 (9th Cir. 1999)). A serious violent felony is:
(i) a Federal or State offense, by whatever designation and wherever committed, consisting of . . . aggravated sexual abuse and sexual abuse (as described in sections 2241 and 2242) . . . robbery (as described in section 2111, 2113, or 2118) . . .; 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)(i)-(ii). Generally, courts refer to clause (i) as the “enumerated offense” clause. See, e.g., United States v. Raboy, No.CR-09-00678-PHX-JAT, 2019 WL7877155, at *3 (D. Ariz. Dec. 20, 2019). The first part of clause (ii), establishing that an offense “that has an element the use, attempted use, or threatened use of physical force” is a serious violent felony, is referred to as the “force/elements clause.” (Id.). Finally, the second part of clause (ii), establishing that an offense that “by its nature, involves a substantial risk that physical force against the person of another may be used” is a serious violent felony, is referred to as the “residual clause.” (Id.).
In the present Motion, Petitioner explains that he received a mandatory life sentence under the federal three-strikes law because he was convicted of an allegedly serious violent felony, Hobbs Act Robbery, and had at least three prior allegedly serious violent felony convictions: (1) second degree robbery under New York state law; (2) sexually motivated coercion under Nevada state law; and (3) robbery with use of a deadly weapon under Nevada state law. (Am. Mot. Vacate 16:11-18, ECF No. 368). However, Petitioner argues that § 3559(c)(2)(F)(ii)'s residual clause has almost identical language to the residual clause in Davis, and thus, should also be struck down as unconstitutionally vague. (Id. 15:20-16:10). Because his prior offenses cannot be serious violent felonies under an unconstitutional residual clause, Petitioner argues that the Government cannot establish that he was previously convicted of at least two serious violent felonies, as required for the § 3559(c)(1) sentence enhancement to apply and asks the Court to vacate his life sentence. (Id. 17:21-23).
While it is true that § 3559(c)(2)(F)(ii)'s residual clause is essentially identical to the one struck down in Davis, § 3559(c)(2)(F)(ii)'s residual clause is actually not implicated in this case. Neither is its force/elements clause. At sentencing, the Government specifically argued that Petitioner's prior sexually motivated coercion conviction in Nevada and robbery convictions in New York and Nevada qualified as serious violent felonies under § 3559(c)(F)(2)(i)'s enumerated offense clause. (See Resp. to Sentencing Mem. 14:12-15:2) (quoting 18 U.S.C.§ 3559(c)(2)(F)(i)). The Court agreed with the Government, finding that all three prior convictions were serious violent felonies, without relying on § 3559(c)(2)(F)(ii)'s force/elements or residual clauses. (See Tr. 58:7-59:20, ECF No. 268). Petitioner does not dispute that Hobbs Act Robbery and his three prior convictions are serious violent felonies under § 3559(c)(F)(2)(i)'s enumerated offense clause as offenses “consisting of . . . aggravated sexual abuse and sexual abuse . . . [and] robbery.” As such, the Court is satisfied that the Government met the requirements for § 3559(c)(1)'s sentence enhancement irrespective of the residual clause, and thus, the Court denies Petitioner's Motion, to the extent that he claims Davis invalidates his § 3559(c)(1) life sentence.
Compare 18 U.S.C. § 924(c)(3)(B) (“the term ‘crime of violence' means an offense . . . 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.”), with 18 U.S.C. § 3559(c)(2)(F)(ii) (“A serious violent felony is . . . any other offense . . . 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.”) (emphasis added).
The Government's Sentencing Memorandum stated: “The Government maintains that the [Petitioner]'s 1980 New York conviction for Robbery in the Second Degree and his 2003 Nevada convictions for Robbery with Use of a Deadly Weapon qualify as ‘serious violent felonies' because they are ‘offense[s] . . . consisting of robbery,' and the [Petitioner]'s 2003 Nevada conviction for Sexually Motivated Coercion qualifies as a ‘serious violent felony' because it is an ‘offense . . . consisting of assault with intent to commit rape; aggravated sexual abuse [or] sexual abuse.'”
Though the Ninth Circuit has not directly addressed whether New York second degree robbery is a serious violent felony, two circuits have concluded that New York second degree robbery is a serious violent felony under 18 U.S.C. § 3559(c)(1). See United States v. Johnson, 915 F.3d 223, 228 (4th Cir. 2019); United States v. Snype, 441 F.3d 119, 144 (2d Cir. 2006).
B. Rehaif Claim
In the present Motion, Petitioner argues that his conviction under 18 U.S.C. §§ 922(g) and 924(a)(2) is invalid because the Government failed to prove that Petitioner knew that he was previously convicted of a crime punishable by more than one year, a felony, as required by Rehaif. (Am. Mot. Vacate 19:1-15, ECF No. 368). Petitioner points out that this mens rea requirement was not present in the superseding indictment or any of the subsequent guilty plea proceedings. (Id. 23:23-25:17). In response, the Government argues that Petitioner's Rehaif claim is barred because Petitioner procedurally defaulted by failing to raise these issues on direct appeal prior to filing his petition under 28 U.S.C. § 2255. (Resp. 8:1-2, ECF No. 371).
Petitioner erroneously claims that Rehaif also requires the government to prove that the Petitioner knew he was barred from possessing a firearm. (Am. Mot. Vacate 19:16-20:27, ECF No. 368). Rehaif only requires the government to prove that defendant knew of his alleged status as a previously convicted felon. See Greer v. United States, 141 S.Ct. 2090, 2093 (2021) (clarifying that “[a]fter Rehaif, the Government in a felon-in-possession case must prove not only that the defendant knew he possessed a firearm, but also that he knew he was a felon when he possessed the firearm”); Rehaif v. United States, 139 S.Ct. 2191, 2198 (2019).
When a petitioner fails to raise a legal argument on direct appeal, the “procedural default” rule bars collateral review under 28 U.S.C. § 2255. See Massaro v. United States, 538 U.S. 500, 504 (2003). The two noted exceptions to this rule are when a petitioner can show both cause and prejudice, or “actual innocence.” Id.; United States v. Ratigan, 351 F.3d 957, 962 (9th Cir. 2003). If the petitioner cannot demonstrate cause and prejudice, he must prove “actual innocence, ” meaning “that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” Schlup v. Delo, 513 U.S. 298, 327 (1995); Alaimalo v. United States, 645 F.3d 1042, 1047 (9th Cir. 2011) (“A petitioner is actually innocent when he was convicted for conduct not prohibited by law.”).
Here, Petitioner makes no claim that he directly appealed the alleged deficiencies in the superseding indictment based on Rehaif. Accordingly, Petitioner procedurally defaulted, and in order to proceed with his Rehaif claim, Petitioner must demonstrate both cause to excuse the default and prejudice resulting from the error. See United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993) (citing United States v. Frady, 456 U.S. 152, 168 (1982)). To demonstrate cause, a petitioner must show “that some objective factor external to the defense impeded [his] efforts to raise the [barred] claim.” Murray v. Carrier, 477 U.S. 478, 479 (1986). “Objective factors that constitute cause include interference by officials that makes compliance with the State's procedural rule impracticable, and a showing that the factual or legal basis for a claim was not reasonably available to counsel.” McCleskey v. Zant, 499 U.S. 467, 493-94 (1991) (internal quotations omitted). A claim is not reasonably available if it “overturn[s] a longstanding and widespread practice to which [the Supreme] Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved.” Reed v. Ross, 468 U.S. 1, 17 (1984). (quotation omitted). “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 a claim in accordance with applicable state procedures.” Id. at 17.
Petitioner also argues that the failure of the superseding indictment to include the mens rea element that Petitioner knew he was previously convicted of a crime punishable by a term of imprisonment exceeding one year robs this Court of jurisdiction. (Am. Mot. Vacate 25:15-27:4). However, “defects in an indictment do not deprive a court of its power to adjudicate a case, ” and so, this Court retains jurisdiction. United States v. Jackson, 838 Fed.Appx. 262, 264 (9th Cir. 2020); United States v. Cotton, 533 U.S. 625, 630 (2002).
A petitioner can also overcome a procedural default by proving actual innocence however, here, Petitioner makes no such claim. See Massaro v. United States, 538 U.S. 500, 504 (2003).
To demonstrate prejudice, a defendant must show “a reasonable probability that his conviction or sentence would have been different.” United States v. Lopez, 577 F.3d 1053, 1060 (9th Cir. 2009) (quoting Stickler v. Green, 527 U.S. 263, 296 (1999)). In the context of a guilty plea, prejudice requires that a petitioner demonstrate “a reasonable probability that, but for [the] errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). “The actual prejudice prong of the procedural default analysis requires a petitioner show ‘not merely that the errors 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. Abundis, No. 2-18-CR-00158-MMD-VCF-1, 2020 WL 7029892, at *5 (D. Nev. Nov. 30, 2020) (citing to Murray v. Carrier, 477 U.S. at 478, 488 (1986)). The Ninth Circuit has consistently rejected Rehaif challenges to convictions for Felon in Possession of a Firearm where the petitioner's prior criminal record presents no reasonable possibility that he did not know that he had been convicted of a crime punishable by more than a year in prison. See, e.g., United States v. Tuan Ngoc Luong, 965 F.3d 973, 989 (9th Cir. 2020) (finding that when the petitioner had prior felony convictions resulting in prison sentences exceeding one year, there is no reasonable probability that a jury would reach a different verdict). See also United States v. Hill, No. 2:13-cr-00367-JAD-VCF-1, 2021 WL 328684, at *3 (Feb. 1, 2021) (“Hill-having been charged with felony assault and sentenced to prison for at least 24 months only two months before the arrest undergirding this conviction-cannot reasonably claim that he was unaware of his status as a felon.”).
In the present case, though cause likely exists, Petitioner is unable to demonstrate prejudice. The Government highlights that Petitioner had seven previous felony convictions, six of which resulted in sentences of imprisonment for one year or more. (See PSR ¶¶ 211, 216, 217, 218). Specifically, in 2003, Petitioner was sentenced to at least 6 years of custody for his felony conviction for Robbery with Use of Deadly Weapon. (Id. ¶ 218). Based on this criminal history, there can be no dispute that Petitioner knew he had been convicted of a crime punishable by imprisonment for a term exceeding one year when he possessed the firearm in 2013. (See Superseding Indictment 13:13, ECF No. 20) (stating that the conduct giving rise to Petitioner's Felon in Possession of a Firearm conviction took place on March 20, 2013). As such, Petitioner cannot demonstrate that he was prejudiced by his conviction; there is no reasonable probability that his conviction would have been different because the Government could have easily satisfied the mens rea element that Petitioner knew of his status as a convicted felon. See, e.g., United States v. Johnson, 963 F.3d 847, 854 (9th Cir. 2020) (“Johnson cannot plausibly argue that a jury . . . would find that he was unaware of his status as someone previously convicted of an offense punishable by more than a year in prison. After all, he had in fact already served three prior prison sentences exceeding one year.”). See also Lopez, 577 F.3d at 1060; Abundis, 2020 WL 7029892, at *5. Thus, the Court denies Petitioner's Motion with respect to the Rehaif claim.
District courts consistently find that Rehaif's holding is a novel claim. See, e.g., United States v. Hill, No. 2:13-cr-00367-JAD-VCF-1, 2021 WL 328684, at *3 (Feb. 1, 2021) (quoting Reed, 468 U.S. at 17) (“Rehaif's holding is such a novel claim given that it ‘overturn[s] a longstanding and widespread practice to which [the] Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved.'”).
Petitioner also claims violations of his Fifth and Sixth Amendment and Due Process rights, essentially arguing that because the deficiencies in his indictment are structural errors, he need not demonstrate prejudice to persevere with his Rehaif claim. (Mot. Comp. Rel. 18:11-21:13, 22:17-24:25). However, “Rehaif errors are never structural, ” and Petitioner has not otherwise shown actual prejudice. United States v. Pollard, 10. F.4th 948, n.3 (9th Cir. 2021) (citing Greer v. United States, 141 S.Ct. 2090, 2099-2100 (2021)). As such, the Court finds that these claims are without merit.
C. Ineffective Assistance of Counsel