Opinion
Case No. C20-994RSL
2021-10-25
Steven Maurice WILLIAMS, Defendant-Petitioner, v. UNITED STATES of America, Plaintiff-Respondent.
Roscoe Jones, US Attorney's Office, Seattle, WA, for Plaintiff-Respondent. Ifeoma Monu, Paula Semmes Deutsch, Public Defenders, Federal Public Defender's Office, Seattle, WA, for Defendant-Petitioner.
Roscoe Jones, US Attorney's Office, Seattle, WA, for Plaintiff-Respondent.
Ifeoma Monu, Paula Semmes Deutsch, Public Defenders, Federal Public Defender's Office, Seattle, WA, for Defendant-Petitioner.
ORDER GRANTING MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE
Robert S. Lasnik, United States District Judge
In this motion under 28 U.S.C. § 2255, petitioner Steven Maurice Williams moves to vacate, set aside, or correct his sentence under 18 U.S.C. § 922(g). Case No. CV20-994RSL Dkt. # 1. The Court has considered the parties’ memoranda, the exhibits, and the remainder of the record. For the following reasons, the petition is GRANTED.
I. BACKGROUND
In September 2013, a federal indictment charged Williams with Possession of Child Pornography (Count 1), Production of Child Pornography/Sexual Exploitation of Children (Count 2), and Felon in Possession of a Firearm (Count 3). Case No. CR13-287RSL, Dkt. # 10 at 1–3. In February 2014, Williams accepted a plea agreement to Count 2, Production of Child Pornography/Sexual Exploitation of Children in violation of 18 U.S.C. § 2251(a) and (e), and Count 3, Felon in Possession of a Firearm in violation of 18 U.S.C § 922(g)(1), and). CR Dkt. # 26 at 1–2. As predicate convictions for Williams’ felon-in-possession charge, the indictment and plea agreement list a 1994 conviction for Residential Burglary and a 1997 conviction for Possessing Stolen Property in the Second Degree for which the statutory maximum terms of incarceration under Washington state law exceeded one year. CR Dkt. # 10 at 2; CR Dkt. # 26 at 8; CV Dkt. # 1-3 at 12; CV Dkt. # 1-4 at 12. Williams was subject to Washington state mandatory guidelines ranges of three to nine months for Residential Burglary, CV Dkt. # 1-4 at 12, and zero to ninety days for Possessing Stolen Property. CV Dkt. # 1-3 at 12. Williams did not file a direct appeal of his conviction or sentence. See generally CR Dkt.
Hereinafter, citations referring to the civil case docket will be noted as "CV Dkt. xx" and as "CR Dkt. xx" for the criminal case.
Williams’ plea agreement required Williams to plead guilty to three state counts of Rape of a Child in the First Degree. CR Dkt. # 26 at 6–7; CV Dkt. # 1-1 at 2. The Government recommended the state and federal sentences be served concurrently. CR Dkt. # 26 at 7. Additionally, Williams agreed to waive any right to bring a collateral attack against the conviction and sentence except as related to the effectiveness of legal representation. Id. at 10–11. On May 16, 2014, the Court imposed a 240-month prison sentence followed by fifteen years of supervised release. CR Dkt. # 40 at 2–3. In September 2014, the state court sentenced Williams to an indeterminate sentence of 318 months to life and ordered the sentence to run concurrently with the federal sentence. CV Dkt. # 1-1 at 6; CV Dkt. # 1-2 at 2.
In June 2020, Williams filed this 28 U.S.C. § 2255 motion to vacate his conviction for Felon in Possession of a Firearm under 18 U.S.C. § 922(g) alleging he is actually innocent of the offense. CV Dkt. # 1 at 1.
II. DISCUSSION
A. Timeliness
The government addresses the timeliness of Williams’ actual innocence claim on two bases: (1) to the extent that Williams has a Rehaif-based claim (that Williams did not have knowledge of his prohibited status); and (2) to the extent that Williams has a Valencia-Mendoza-based claim (that Williams was not subject to a maximum term of imprisonment of more than one year for his underlying offenses.) See Rehaif v. United States, ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019) ; United States v. Valencia-Mendoza, 912 F.3d 1215 (9th Cir. 2019) ; United States v. McAdory, 935 F.3d 838 (9th Cir. 2019) ; CV Dkt. # 4 at 4.
The government concedes that Williams’ Rehaif-based claim is timely. CV Dkt. # 4 at 4. Under 28 U.S.C. § 2255, a claim is timely if it is brought within one year of 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). On June 21, 2019, the Supreme Court issued its decision in Rehaif, holding that a felon-in-possession conviction under 18 U.S.C. § 922(g) requires proof the defendant knew of his prohibited status. 139 S. Ct. at 2194. The government agrees that Rehaif applies retroactively to cases on collateral review. CV Dkt. # 4 at 5 (citing Welch v. United States, 578 U.S. 120, 136 S. Ct. 1257, 1264–66, 194 L.Ed.2d 387 (2016) ). Because Williams’ § 2255 motion was filed within one year of the Rehaif decision, Williams’ Rehaif-based claim is timely. 28 U.S.C. § 2255(f)(3).
Additionally, Williams’ actual innocence is sufficient to overcome the untimeliness of his Valencia-Mendoza-based claim. See McQuiggin v. Perkins, 569 U.S. 383, 391–98, 133 S.Ct. 1924, 185 L.Ed.2d 1019 (2013) (holding that a plea of actual innocence can overcome Antiterrorism and Effective Death Penalty Act's (AEDPA) one-year statute of limitations for filing habeas petitions); Valencia-Mendoza, 912 F.3d 1215. The government concedes this timeliness issue as well. CV Dkt. # 4 at 4.
B. Procedural Default
A defendant who fails to raise a claim on direct appeal is generally barred from raising the claim on collateral review in federal habeas cases. Sanchez-Llamas v. Oregon, 548 U.S. 331, 350–51, 126 S.Ct. 2669, 165 L.Ed.2d 557 (2006). A defendant can overcome procedural default and have the court consider the merits of his 28 U.S.C. § 2255 claim by demonstrating: (1) sufficient cause for the default and actual prejudice resulting from it; or (2) that he is actually innocent of the offense. Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). Although Williams’ claim is procedurally defaulted because he did not appeal his convictions in Case No. CR13-0287RSL, the government concedes Williams’ actual innocence is sufficient to overcome the procedural default. CV Dkt. # 4 at 4; see Vosgien v. Persson, 742 F.3d 1131, 1134 (9th Cir. 2014) ; Nair v. United States, No. C19-1751JLR, 2020 WL 1515627, at *3 (W.D. Wash. Mar. 30, 2020).
C. Actual Innocence
The Supreme Court and Ninth Circuit have reserved expressly deciding whether an actual innocence claim is cognizable, Dist. Attorney's Off. for Third Jud. Dist. v. Osborne, 557 U.S. 52, 71, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009) ; Taylor v. Beard, 811 F.3d 326, 334 (9th Cir. 2016), but have each assumed that such a federal right exists. See Herrera v. Collins, 506 U.S. 390, 417, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) (acknowledging the possibility that a freestanding actual innocence claim would exist in the capital context); House v. Bell, 547 U.S. 518, 554–55, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006) (acknowledging that any freestanding actual innocence claim would need to meet the standard implied in Herrera ); see also United States v. Berry, 624 F.3d 1031, 1038 n.5 (9th Cir. 2010) (stating in dicta that "this circuit recognizes a claim of actual innocence that is cognizable under § 2255 [.]"). The Supreme Court has stated that the standard of proof required of a habeas petitioner to make a successful freestanding claim would be "extraordinarily high," and that the showing would have to be "truly persuasive." Herrera, 506 U.S. at 417, 113 S.Ct. 853 ; see also Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997). In Carriger, the Ninth Circuit articulated a standard for an actual innocence claim, that a petitioner must go beyond demonstrating doubt about his guilt, and must affirmatively prove that he is probably innocent. 132 F.3d at 476 (citing Herrera, 506 U.S. at 442–44, 113 S.Ct. 853 (Blackmun, J., dissenting)).
Here, Williams’ felon-in-possession conviction was obtained in violation of the "laws of the United States" due to an intervening change in the law. Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) (quoting 28 U.S.C. § 2255 ). Unlike insufficiency of evidence claims which do not meet the "extraordinarily high" standard required by Herrera, Williams has affirmatively proved that he is actually innocent as a matter of law and therefore his claim is cognizable. See 506 U.S. at 417, 113 S.Ct. 853 ; Carriger, 132 F.3d at 476 ; see also Pringle v. Runnels, No. 07-CV-1960-LAB POR, 2010 WL 5582945, at *10 (S.D. Cal. June 22, 2010), report and recommendation adopted as modified, No. 07-CV-1960-LAB POR, 2011 WL 129427 (S.D. Cal. Jan. 13, 2011) (holding that in both capital and non-capital cases, "a freestanding claim of actual innocence constitutes a cognizable constitutional claim, subject to federal habeas corpus review.").
In Valencia-Mendoza, the Ninth Circuit overruled prior circuit precedent and held that a Washington state conviction is a crime punishable by imprisonment for a term exceeding one year if the top-end of the defendant's mandatory state guidelines range or the actual sentence imposed exceeded one year. See 912 F.3d at 1224. To establish actual innocence, the petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him. Bousley, 523 U.S. at 623, 118 S.Ct. 1604. A petitioner is actually innocent when he was convicted for conduct not prohibited by law. Alaimalo v. United States, 645 F.3d 1042, 1047 (9th Cir. 2011). One way for a defendant to "demonstrate actual innocence is to show in light of subsequent case law that he cannot, as a legal matter, have committed the alleged crime." Vosgien, 742 F.3d at 1134.
Williams is actually innocent of his felon-in-possession conviction pursuant to 18 U.S.C. § 922(g)(1) because Williams’ prior convictions for residential burglary and possessing stolen property were not punishable by a term of imprisonment exceeding one year. See Valencia-Mendoza, 912 F.3d 1215 ; Rehaif, 139 S. Ct. 2191 ; McAdory, 935 F.3d 838. In Rehaif, the Supreme Court overruled longstanding precedent from the Ninth Circuit concerning the scope of 18 U.S.C. § 922(g). 139 S. Ct. at 2194. The Supreme Court held that § 922(g)(1) requires that the individual know that he possessed a firearm and that he belonged to one of the prohibited categories listed in § 922(g)(1) when he possessed the firearm. Id. Because none of Williams’ prior convictions were qualifying predicates for the felon-in-possession charge, see CV Dkt. # 1-3 at 27; CV Dkt. # 1-4 at 27, Williams did not know his prohibited status and is thus actually innocent under the intervening change in law. Rehaif, 139 S. Ct. at 2194 ; Valencia-Mendoza, 912 F.3d at 1216.
D. Concurrent-Sentence Doctrine
The concurrent-sentence doctrine provides courts with discretion not to reach the merits of a claim attacking fewer than all multiple concurrent sentences if success on the claim would not have any collateral consequences or change the term of imprisonment. See Benton v. Maryland, 395 U.S. 784, 791, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). The government argues that the doctrine applies here because even if the Court were to vacate Williams’ felon-in-possession conviction, Williams will remain subject to the concurrent 240-month sentence imposed for his child-pornography conviction. CV Dkt. # 4 at 2.
The Court declines to apply the concurrent-sentence doctrine in this case. The Ninth Circuit has rejected the use of concurrent-sentence doctrine as a means of avoiding review of criminal convictions on direct appeal. United States v. De Bright, 730 F.2d 1255, 1259 (9th Cir. 1984) (en banc); see also Cruickshank v. United States, 505 F. Supp. 3d 1127, 1131 (W.D. Wash. 2020). In De Bright, the Ninth Circuit reasoned it "[could not] conclude in good conscience that [it] possess[ed] the ability to predict with sufficient certainty all the adverse collateral legal consequences of unreviewed convictions" and thus the collateral-sentence doctrine is "unfair to defendants and inappropriate in our criminal justice system." 730 F.2d at 1259. In Cruickshank, this District extended the Ninth Circuit's reasoning in De Bright to the § 2255 context and declined to apply the concurrent-sentence doctrine. 505 F. Supp. 3d at 1131. Likewise, this Court is persuaded that the Ninth Circuit's reasoning in De Bright applies in the § 2255 context and declines to dismiss Williams’ motion under the concurrent-sentence doctrine. See id.
E. Collateral Attack Waiver
The government argues that Williams waived his right to bring a § 2255 motion in his plea agreement. CV Dkt. # 4 at 7; CR Dkt. # 26 at 10–11. Williams’ plea agreement waives "any right to bring a collateral attack against the conviction and sentence ... except as it may relate to the effectiveness of legal representation." CR Dkt. # 26 at 10–11. Here, Williams’ waiver is valid. Neither party alleges that Williams’ waiver was invalid and there is no evidence in the record to support that conclusion. The issue is whether Williams’ actual innocence claim is within the scope of the valid waiver in his plea agreement.
The government also suggests that by not arguing in his § 2255 motion that the appeal waiver was unenforceable, Williams waived the opportunity to argue that the waiver provision does not foreclose this collateral challenge. CV Dkt. # 4 at 9. However, collateral attack waiver is an affirmative defense to be raised by the government, so the petitioner is not required to raise it. See United States v. Sainz, 933 F.3d 1080, 1086–87 (9th Cir. 2019) (adopting as persuasive the Eleventh Circuit's analysis of a § 2255 waiver as a waivable affirmative defense in Burgess v. United States, 874 F.3d 1292 (11th Cir. 2017), to analyze a waiver in a § 3582(c)(2) proceeding).
Standard principles of contract law guide the interpretation of the terms of a plea agreement. United States v. Torres, 828 F.3d 1113, 1124 (9th Cir. 2016). The Ninth Circuit will enforce an appeal waiver contained in a plea agreement if "the language of the waiver encompasses [the defendant's] right to appeal on the grounds raised, and if the waiver was knowingly and voluntarily made." Id. (quoting United States v. Joyce, 357 F.3d 921, 922 (9th Cir. 2004) ).
Torres held that "[a] waiver of appellate rights will ... not apply if a defendant's sentence is ‘illegal[.]’ " 828 F.3d at 1125. The government suggests that Torres may not necessarily apply to challenges to a conviction in addition to challenges to a sentence. CV Dkt. # 4 at 8. The Torres court reasoned that "the Constitution imposes a floor below which a defendant's plea, conviction, and sentencing may not fall." 828 F.3d at 1124–25. By the court's reasoning in Torres, an appeal waiver should be considered not only in the context of illegal sentences but in the context of illegal convictions as well. See id. Because Williams’ conviction is illegal, the appeal waiver in his plea agreement does not bar this challenge.
Defendants are permitted to waive their right to collaterally attack a conviction as part of a plea agreement. See United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993). In Abarca, the Ninth Circuit considered whether the petitioner's appeal waiver made as part of his plea agreement precluded his right to relief under § 2255 when he claimed that newly discovered partially exculpatory evidence entitled him to resentencing. Id. at 1013. The Ninth Circuit held that the petitioner's appeal waiver precluded his right to relief under § 2255 because like a direct appeal, a collateral attack is statutory, and a knowing and voluntary waiver of a statutory right is enforceable. Id. at 1014. The Ninth Circuit reasoned that the petitioner's waiver did not categorically foreclose him from bringing any § 2255 proceeding, such as a claim of ineffective assistance of counsel or involuntariness of waiver, but his waiver did contemplate the question of the "degree of his culpability." Id.
Williams’ claim is unlike Abarca, because Williams is actually innocent of the offense as a legal matter. In United States v. Adams, the Fourth Circuit considered whether a petitioner was actually innocent of § 922(g) (prior to Rehaif ) because of United States v. Simmons, 649 F.3d 237 (4th Cir. 2011), which held that for the purposes of § 922(g), a prior conviction was punishable for a term of imprisonment exceeding one year only if the upper end of the mandatory state guideline was greater than one year. 814 F.3d 178, 182–83 (4th Cir. 2016). Like the Fourth Circuit held in Simmons, the Ninth Circuit has held that for the purposes of § 922(g), an offense qualifies as a predicate felony if it is punishable by imprisonment for a term exceeding one year if the defendant's conviction actually exposes the defendant to that sentence under the state's mandatory sentencing scheme. McAdory, 935 F.3d at 843. The Adams court held that the petitioner's Simmons-based claim fell within the "miscarriage of justice" exception to the enforceability of collateral attack waivers, reasoning that "just as the criminal justice system must see the guilty convicted and sentenced to a just punishment, so too must it ferret out and vacate improper convictions." 814 F.3d at 185. Like the petitioner in Adams, Williams was not convicted of a felony subject to imprisonment for a term exceeding one year at the time of the charged offense. See id. Therefore, it was not illegal under § 922(g) for Williams to possess a firearm, and he should not remain convicted of a crime for which is he actually innocent.
The Ninth Circuit has held that an appeal waiver will not apply if the sentence violates the law but has not explicitly addressed an exception for miscarriages of justice. See United States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007). Several federal appeals courts have declined to enforce appeal waivers when doing so would result in a true miscarriage of justice. See, e.g., United States v. Teeter, 257 F.3d 14, 25 (1st Cir. 2001) ; United States v. Castro, 704 F.3d 125, 139 (3d Cir. 2013) ; United States v. Andis, 333 F.3d 886, 891 (8th Cir. 2003) ; United States v. Litos, 847 F.3d 906, 910 (7th Cir. 2017) ; United States v. Hahn, 359 F.3d 1315, 1327 (10th Cir. 2004). The Supreme Court has described the miscarriage of justice exception as "grounded in the ‘equitable discretion’ of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons." Herrera, 506 U.S. at 404, 113 S.Ct. 853. This Court finds persuasive the Fourth Circuit's arguments in Adams and declines to enforce the collateral attack waiver in Williams’ plea agreement.
The government cites to three cases that purport to stand for the principle that a collateral attack waiver "encompasses a claim that the defendant is innocent of an offense." CV Dkt. # 4 at 8; See United States v. McTiernan, 552 F. App'x 749, 750 (9th Cir. 2014) ; Pressley v. United States, C12-5760BHS, Dkt. No. 13 at 6 (W.D. Wash. Nov. 14, 2012); see also Oliver v. United States, 951 F.3d 841, 844 (7th Cir. 2020). However, in all three cases, the petitioners were not actually innocent, whereas Williams is actually innocent as a matter of law.
III. CONCLUSION
For all of the foregoing reasons, Williams’ motion under 28 U.S.C. § 2255 to vacate, correct, or set aside his sentence is GRANTED. The Court VACATES and SETS ASIDE the felon-in-possession of a firearm conviction under 18 U.S.C. § 922(g) in Case No. CR-13-0287RSL. The parties shall contact the Court to schedule resentencing for the remaining conviction of Production of Child Pornography/Sexual Exploitation of Children in violation of 18 U.S.C. § 2251(a) and (e).
ORDER DENYING MOTION FOR RECONSIDERATION
This matter comes before the Court on respondent United States of America's "Motion for Reconsideration." (Dkt. # 8). For the reasons explained below, the government's motion for reconsideration is DENIED.
I. BACKGROUND
On October 25, 2021, the Court vacated and set aside Williams’ felon in possession of a firearm conviction under 18 U.S.C. § 922(g) in Case No. CR13-287-RSL. Dkt. # 6 at 9. In the underlying case, Williams pleaded guilty to felon in possession of a firearm, along with other charges, and his plea agreement included a waiver of any right to bring a collateral attack against the conviction and sentence except as related to the effectiveness of legal representation. Id. at 1-2. The Court found that under recent Supreme Court and Ninth Circuit caselaw, Williams was actually innocent of his felon-in-possession conviction pursuant to 18 U.S.C. § 922(g)(1) because his prior state law convictions were not punishable by a term of imprisonment exceeding one year. Id. at 5. In considering Williams’ ability to bring a collateral attack under § 2255, the Court found that the collateral attack waiver in Williams’ plea agreement was valid, id. at 6, but nonetheless declined to enforce it on the grounds that doing so would be a miscarriage of justice in light of Williams’ actual innocence, id. at 7-9. In reaching this conclusion, the Court looked to the Fourth Circuit's reasoning in United States v. Adams, 814 F.3d 178 (4th Cir. 2016). Id. at 7-9.
On October 26, 2021, the government filed its timely motion for reconsideration. See Local Rules W.D. Wash. LCR 7(h). The government requests that the Court reconsider its original decision in light of the Ninth Circuit's opinion in United States v. Goodall, 15 F.4th 987 (9th Cir. 2021) (" Goodall I"), amended by 21 F.4th 555 (9th Cir. 2021) (" Goodall II" and, together with Goodall I, "Goodall"). Goodall I was issued on October 13, 2021 and was amended by Goodall II on December 28, 2021. See Dkt. # 8; Dkt. # 12.
II. DISCUSSION
Motions for reconsideration "are disfavored." Local Rules W.D. Wash. LCR 7(h)(1). Ordinarily, the Court will deny such motions in the absence of a showing of (i) "manifest error in the prior ruling," or (ii) "new facts or legal authority which could not have been brought to its attention earlier with reasonable diligence." Id.
The government's motion for reconsideration does not present any new facts or legal authority that could not have been brought to the Court's attention earlier with reasonable diligence. While Goodall I was decided only a short time before the Court issued its original order on Williams’ § 2255 motion, LCR 7(n) permits parties to bring to the Court's attention relevant authority issued after the date the party's last brief was filed but before the Court rules on the pending motion. Local Rules W.D. Wash. LCR 7(n). The government failed to take advantage of this process.
The Court, however, acknowledges that the government properly submitted a notice of supplemental authority to inform the Court of the Ninth Circuit's amended opinion in Goodall II on December 28, 2021. See Dkt. # 12.
The government argues that Goodall compels the conclusion that Williams’ § 2255 motion is barred by his collateral review waiver and that the Court's original order therefore constitutes a manifest error. Dkt. # 11 at 3. The Court does not find manifest error.
In Goodall, the defendant committed a string of armed robberies. Goodall pleaded guilty to two counts of conspiracy to commit Hobbs Act robbery pursuant to 18 U.S.C. § 1951(a) and brandishing a firearm during and in relation to a crime of violence pursuant to 18 U.S.C. § 924(c)(3). Goodall II, 21 F.4th at 557. The Hobbs Act conspiracy charges served as predicate "crimes of violence" for the § 924(c)(3) charge. Id. at 559. Goodall's plea included a broad waiver of his right to appeal his conviction or sentence. Id. at 559-60. The Supreme Court subsequently held that conspiracy to commit Hobbs Act robbery cannot be a crime of violence under the residual clause of 18 U.S.C. § 924(c)(3). Id. at 560 (citing United States v. Davis, ––– U.S. ––––, 139 S. Ct. 2319, 2336, 204 L.Ed.2d 757 (2019) ). Goodall appealed, asserting that "post- Davis, only § 924(c) ’s ‘elements clause’ defining a ‘crime of violence’ remains valid and that his conviction must be vacated because a Hobbs Act conspiracy is not a ‘crime of violence’ under the ‘elements clause.’ " Id. at 560-61. Goodall argued that the Ninth Circuit should extend existing caselaw holding that an appellate waiver does not apply to an "illegal sentence" to invalidate an appellate waiver if the conviction was later found to be "illegal." Id. at 562-63.
The Ninth Circuit declined Goodall's invitation to extend the "illegal sentence" exception. The court provided three lines of reasoning: (i) the "illegal sentence" exception is based on a technical definition, which does not include an "illegal conviction," (ii) the "illegal sentence" exception rests on the uncertainty in future sentencing, and (iii) Goodall's proposed appellate waiver exception could invite defendants to challenge a conviction on any error, therefore broadly undoing appellate waivers and disincentivizing the government from offering plea agreements. See id. at 562-65.
On December 28, 2021, the Ninth Circuit issued an amended opinion in Goodall II, denying Goodall's petitions for panel rehearing and rehearing en banc. Id. at 557. The amended opinion added only the following footnote to the opinion issued in Goodall I: "Defendant did not raise, and we do not consider, the applicability, if any, of an exception for a miscarriage of justice. We express no view on the viability of that exception in other circumstances." Id. at 557, 565 n.6.
Unlike Goodall, Williams raised a miscarriage of justice exception, and the Court granted his collateral attack waiver exception on this ground. See Dkt. # 6 at 8-9. A miscarriage of justice exception is viable in this circumstance because the Court found that Williams is actually innocent of the offense in question.
The Goodall court did not expressly evaluate whether Goodall was actually innocent, as Goodall did not frame his argument on this term. See Goodall II, 21 F.4th at 560-61. "Actual innocence" is a term of art. It means factual innocence, not mere legal insufficiency. Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (citing Sawyer v. Whitley, 505 U.S. 333, 339, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992) ). In cases where the government has foregone more serious charges in the course of plea bargaining, the petitioner's showing of actual innocence must extend to those charges as well. Id. at 625, 118 S.Ct. 1604. However, the government must show that it elected not to charge the petitioner with the additional offenses in exchange for the guilty plea. See id.; cf. Oliver v. United States, 951 F.3d 841, 847 (7th Cir. 2020) ("[E]ven overlooking the shootout that occurred, the government could easily have premised the § 924(c) counts on the Hobbs Act robbery of the pawn shop in Indiana. It is not a miscarriage of justice to refuse to put [defendants] in a better position than they would have been in if all relevant actors had foreseen Davis.").
The government invites the Court to consider an amicus brief submitted by the Ninth Circuit's Federal Defenders in support of Goodall's petition for rehearing as evidence that Goodall was actually arguing that he was actually innocent all along. See Dkt. # 12 at 1-2 (citing Brief of Federal Defenders of the Ninth Circuit as Amicus Curiae Supporting Eric Goodall's Petition for Rehearing, United States v. Goodall, 9th Cir. No. 18-10004, Dkt. No. 63 at 9, 20 n.7 ("Amicus Brief")). While it is true that the Amicus Brief argues that Goodall was in fact actually innocent, it also acknowledges, "Goodall never grappled with the actual-innocence problem—the parties never framed their arguments in terms of actual innocence." Amicus Brief at 8.
Unlike conspiracy to commit Hobbs Act robbery, Hobbs Act robbery remains a crime of violence under § 924(c)(3)(A). See United States v. Dominguez, 954 F.3d 1251, 1260 (9th Cir. 2020).
Perhaps Goodall was actually innocent under the standard articulated in Bousley. While the Goodall court stated that "[i]f Goodall had been charged with all possible crimes, Goodall's ‘crime of violence’ argument would not even exist," and the government argued that it could have charged Goodall with eight counts of Hobbs Act robbery, Goodall was indicted solely on conspiracy charges. See Goodall II, 21 F.4th at 559-60, 564. However, the Court need not grapple with the contours of the actual innocence standard as applied to Goodall (nor is it in a position to do so—the Goodall record is not before the Court and it lacks facts regarding, e.g. , why the government declined to charge Goodall with Hobbs Act robbery). The omission of an explicit finding of actual innocence in Goodall is sufficiently differentiating from the case at hand.
Unlike Goodall, Williams argued that he is actually innocent of the felon in possession of a firearm conviction under 18 U.S.C. § 922(g). As the Court discussed in its original order, Williams is actually innocent of this conviction because his prior convictions for residential burglary and possessing stolen property were not punishable by a term of imprisonment exceeding one year and therefore were not qualifying predicate convictions. Dkt. # 6 at 4-5 (citing Rehaif v. United States, ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019) ; United States v. Valencia-Mendoza, 912 F.3d 1215 (9th Cir. 2019) ; United States v. McAdory, 935 F.3d 838 (9th Cir. 2019) ). The government agreed that Williams was actually innocent. See Dkt. # 4 at 7. While Goodall's actual innocence remains undecided, Williams’ does not.
The Goodall court expressly indicated that it had not considered a miscarriage of justice exception and reserved consideration of its viability in other circumstances. See Goodall II, 21 F.4th at 565 n.6. Actual innocence is an appropriate, and differentiating, circumstance under which to permit this exception. Goodall does not compel a different result.
The Court recognizes the Goodall court's disfavor for granting waivers in the context of convictions on the premise that defendants assume "the risk of future changes in circumstances in light of which one's bargain may prove to have been a bad one." Id. at 564 (quoting Oliver, 951 F.3d at 845-46 ). However, it also recognizes that the Ninth Circuit avoids creating a direct conflict with other circuits absent a strong reason to do so. United States v. Chavez-Vernaza, 844 F.2d 1368, 1374 (9th Cir. 1987). Recognizing a miscarriage of justice exception to a collateral attack waiver upon a finding of actual innocence avoids reading a direct conflict into the Ninth Circuit's decision in Goodall and the Fourth Circuit's decision in Adams.
The Court emphasizes that its decision to grant a miscarriage of justice exception upon a finding of actual innocence, a rarity in light of the affirmative showing of factual innocence required, see Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997) (citing Herrera v. Collins, 506 U.S. 390, 442-44, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) (Blackmun, J., dissenting)), is a narrow holding. Such a narrow exception is not inconsistent with the Ninth Circuit's concern that permitting Goodall's "illegal conviction" exception might threaten the efficiency and finality of plea bargaining by inviting defendants to challenge waivers "by simply alleging error in the conviction." Goodall II, 21 F.4th at 564.
III. CONCLUSION
For the foregoing reasons, the government's motion for reconsideration (Dkt. # 8) is DENIED.
DATED this 21st day of January, 2022.