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United States v. Avery

United States District Court, D. Nevada

January 3, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DAVID DOUGLAS AVERY, Defendant.

          ORDER

          LARRY R. HICKS UNITED STATES DISTRICT JUDGE.

         Before the court is petitioner David Douglas Avery's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. ECF No. 203.[1] The United States filed a response (ECF No. 205), to which Avery replied (ECF No. 206). The court subsequently ordered supplemental briefing (ECF No. 208), which Avery provided (ECF No. 209). The United States filed a responsive brief (ECF No. 212), and Avery replied (ECF No. 213).

         The court finds that none of the procedural issues that the United States raises bar Avery's claim for relief. Having therefore considered his claim's merit, the court finds that Avery's Nevada robbery convictions are not categorically violent felonies and that he is not an armed career criminal within the meaning of 18 U.S.C. § 924(e). His motion will therefore be granted.

         I. Background

         Avery's § 2255 petition seeks relief under the U.S. Supreme Court's recent decision in Johnson v. United States, 135 S.Ct. 2551 (2015) (“Johnson” or “Johnson 2015”). In 2003, Avery was convicted of one count of felon in possession of a firearm. ECF No. 149. His Presentence Investigation Report (“PSR”) revealed five felony convictions that it classified as “violent felonies” under 18 U.S.C. § 924(e)(2)(B): (1) a Nevada burglary conviction under NRS § 205.060; (2) a California burglary conviction under California Penal Code § 459; and (3) three separate Nevada robbery convictions under NRS § 200.380. The PSR therefore concluded that Avery was an “armed career criminal” within the meaning of 18 U.S.C. § 924(e) and, because he had three or more prior violent-felony convictions, he was subject to a fifteen-year minimum sentence under the Armed Career Criminal Act (“ACCA”). The report calculated a sentencing guidelines range of 188-235 months' imprisonment, and Judge David Hagen (“the sentencing court”) sentenced Avery to 211 months' imprisonment. ECF No. 149.

         Prior to sentencing, Avery filed a memorandum objecting to the PSR's classification of his burglary convictions as violent felonies, arguing that both the Nevada and California statutes were overbroad under the categorical approach. ECF No. 119. Avery did not argue that the three robbery convictions were not violent felonies under the ACCA. He instead acknowledged that three violent-felony convictions are sufficient to trigger the ACCA's sentencing enhancement but argued that the purportedly misclassified burglary convictions did not support the PSR's sentencing recommendation. Id. at 5.

         Avery appealed his conviction and sentence to the Ninth Circuit Court of Appeals, but he did not challenge the classification of any of his prior convictions as violent felonies or his resulting classification as an armed career criminal. See United States v. Avery, opening brief, 2005 WL 926333 (2005). The Ninth Circuit granted Avery a limited remand because the district court sentenced him before the U.S. Supreme Court ruled that the sentencing guidelines are advisory in United States v. Booker, 543 U.S. 220 (2005). United States v. Avery, 152 F. App'x 659, 661 (9th Cir. 2005). On remand, this court was assigned Avery's case (ECF No. 167) and reinstated his original sentence (ECF No. 174).

         Avery now brings this § 2255 motion, arguing that, after Johnson, he no longer qualifies as an armed career criminal.

         II. Legal standard

         Pursuant to 28 U.S.C. § 2255, a prisoner may move the court to vacate, set aside, or correct a sentence if “the sentence was imposed in violation of the Constitution or laws of the United States, or . . . the court was without jurisdiction to impose such sentence, or . . . the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). The statute creates a one-year statute of limitations for such motions. Id. § 2255(f). When a petitioner seeks relief pursuant to a right recognized by a U.S. Supreme Court decision, the statute of limitations runs from “the date on which the right asserted was initially recognized by the . . . Court, if that right has been . . . made retroactively applicable to cases on collateral review . . . .” Id. § 2255(f)(3). The petitioner bears the burden of demonstrating that his petition is timely and that he is entitled to relief. Ramos-Martinez v. United States, 638 F.3d 315, 325 (1st Cir. 2011).

         III. Discussion

         In Johnson, the Supreme Court held that a portion of the ACCA's violent-felony definition, often referred to as the “residual clause, ” was unconstitutionally vague. 135 S.Ct. at 2557. The ACCA applies to certain defendants charged with unlawful possession of a firearm under 18 U.S.C. § 922(g), such as, in Avery's case, being a felon in possession of a firearm under § 922(g)(1). 18 U.S.C. § 924(e). Normally, a defendant convicted of unlawful possession of a firearm may be sentenced to a statutory maximum of ten-years' imprisonment. Id. § 924(a)(2). However, if a defendant has three prior convictions that constitute either a “violent felony” or “serious drug offense, ” the ACCA enhances the ten-year maximum sentence to a fifteen-year minimum sentence. Id. § 924(e)(1).

         The ACCA defines a violent felony as

any crime punishable by imprisonment for a term exceeding one year . . . that-
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another . . . .

Id. § 924(e)(2)(B) (emphasis added). The first clause in this definition is known as either the “element” or “force” clause, while the second clause is the “enumerated-offense” clause. The italicized final clause is the “residual clause, ” which the Supreme Court declared void for vagueness in Johnson. When a defendant's prior conviction categorically matches[2] the force clause or a generic offense under the enumerated-offense clause, it is commonly referred to as an “ACCA predicate” or a “predicate offense.”

         After Johnson, the Supreme Court subsequently ruled that its decision announced a new substantive rule that applies retroactively to cases on collateral review. Welch v. United States, 136 S.Ct. 1257 (2016). In turn, defendants that received an ACCA sentence enhancement under the residual clause could move for relief under § 2255 within one year of the Johnson decision.

         Here, Avery argues that he is entitled to relief because the record does not reveal whether the sentencing court applied the residual clause in determining that his Nevada robbery convictions constituted violent felonies.[3] He therefore argues that the court should resentence him and determine whether these convictions satisfy either of the surviving ACCA clauses. Avery devotes the majority of his motion to arguing that, under Supreme Court cases decided after his sentencing, his prior convictions no longer categorically qualify as violent felonies.

         Conversely, the United States devotes its response to arguing that Avery is not eligible for relief under Johnson. First, it highlights the fact that Avery did not challenge whether his robbery convictions were violent felonies before the district court or the Ninth Circuit. ECF No. 205 at 3-4. As discussed below, the court will construe this assertion as a procedural-default argument. The United States also argues that Avery's claim is time barred because he seeks relief through pre-Johnson cases. Id. at 6. Finally, the United States argues that Avery has failed to meet his burden under § 2255 because he is unable to conclusively establish that the sentencing court relied on the residual clause in determining that he was an armed career criminal. Id. at 5.

         Because the United States' arguments raise threshold issues that would bar Avery's claim, the court will resolve each one before addressing whether his Nevada robbery convictions are violent felonies under the surviving ACCA clauses.

         A. Procedural default

         In its response to Avery's § 2255 motion, the United States highlighted the fact that Avery did not challenge the classification of his robbery offenses as violent felonies before the sentencing court or the Ninth Circuit. ECF No. 205 at 3-4. Although the United States did not address this fact's legal relevance, Avery interpreted the reference as a procedural-default argument. ECF No. 206 at 2 (“Yet the government asserts that Avery's request for resentencing should be denied because Avery's motion is procedurally defaulted . . . .”). He therefore devoted a portion of his reply to arguing that his claim is not defaulted or can otherwise overcome default. Id. at 4-6. Because this issue arose at the end of the motion's briefing and was not sufficiently addressed, the court ordered supplemental briefing. ECF No. 208.[4]

         Avery now argues that the United States waived this issue by not directly raising it in its original response. ECF No. 209 at 2. However, this assertion is contradictory to Avery's earlier position. Moreover, Avery raised the issue and prompted the need for additional briefing. The court will therefore address whether Avery's claim is procedurally defaulted.

         A petitioner's claim is procedurally defaulted if he fails to raise it on direct review. Bousley v. United States, 523 U.S. 614, 622 (1998); United States v. Ratigan, 351 F.3d 957, 962 (9th Cir. 2003) (“A § 2255 movant procedurally defaults his claims by not raising them on direct appeal. . . .”). However, he may overcome default if he can “demonstrate either ‘cause' and ‘actual prejudice, ' or that he is ‘actually innocent.'” Bousley, 523 U.S. at 622 (internal citations omitted). In regards to the cause-and-prejudice analysis, a petitioner may establish cause “where a constitutional claim is so novel that its legal basis is not reasonably available to counsel . . . .” Reed v. Ross, 468 U.S. 1, 16 (1984). This can occur when the Supreme Court overrules its own precedent or overturns “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.” Id. at 17.

         Avery originally argued in his motion to vacate that he could demonstrate cause because the Court, in Johnson 2015, explicitly overruled two of its prior cases in which it held that the residual clause was not unconstitutionally vague. ECF No. 206 at 5. See Johnson 2015, 135 S.Ct. at 2563 (overruling “contrary holdings” in James v. United States, 550 U.S. 192 (2007) and Sykes v. United States, 564 U.S. 1 (2011)). However, as this court highlighted in its order for supplemental briefing, Avery's appeal to the Ninth Circuit occurred before the Supreme Court issued its decisions in James and Skyes. ECF No. 208 at 4. In apparent response to this fact, Avery now argues that, at the time of his appeal, every circuit court to have considered a vagueness challenge to the ACCA, including the Ninth Circuit, had rejected this argument. ECF No. 209 at 4-5 (citing cases); United States v. Sorenson, 914 F.2d 173, 175 (9th Cir. 1990). He thus contends that Johnson 2015 overruled a “longstanding and widespread practice” of applying the residual clause, which was approved by a “near-unanimous body of lower court authority.” ECF No. 209 at 4.

         Numerous courts have found that petitioners who were sentenced after James or Skyes have met the cause prong to the procedural-default exception. E.g., Johnson v. United States, No. 4:16-CV-00649-NKL, 2016 WL 6542860, at *2 (W.D. Mo. Nov. 3, 2016); United States v. Kennedy, No. 112CR414LJOSKO1, 2016 WL 6520524, at *3 (E.D. Cal. Nov. 3, 2016); Dietrick v. United States, No. C16-705 MJP, 2016 WL 4399589, at *2 (W.D. Wash. Aug. 18, 2016). Based on the circuit authority that existed in the years preceding James and Skyes, this court similarly finds that Avery had cause for not challenging the ACCA's application to his robbery convictions on appeal. And because Avery's designation as an armed career criminal increased his sentence beyond the 10-year maximum sentence under 18 U.S.C. § 924(a)(2), he clearly satisfies the prejudice prong. See Murray v. United States, No. 15-CV-5720 RJB, 2015 WL 7313882, at *4 (W.D. Wash. Nov. 19, 2015).

         Moreover, the United States has conceded that a petitioner who “does not, in fact, have three qualifying predicate offenses” is “‘actually innocent' of being an armed career criminal . . . .” ECF No. 212 at 10.[5] Because the court ultimately finds that Avery's Nevada robbery convictions are not ACCA predicates, he is “actually innocent” of being an armed career criminal, and he therefore also meets this procedural-default exception.

         B. Time bar

         The United States also argues that Avery's claim for relief actually relies on pre-Johnson 2015 cases, such as Descamps v. United States, 133 S.Ct. 2276 (2013) and Johnson v. United States, 559 U.S. 133 (2010) (“Johnson 2010”).[6] ECF No. 205 at 6. The United States contends that, because the Supreme Court decided these cases several years ago, Avery's petition does not fall within § 2255's one-year statute of limitation and is thus time barred.

         Avery's claim does, in part, rely on these earlier cases. For example, as discussed below, Avery argues that his Nevada robbery convictions are no longer a categorical match for the force clause because the Court, in Johnson 2010, narrowed the clause's definition of “physical force” to mean “violent force-that is, force capable of causing physical pain or injury to another person.” 559 U.S. at 140 (emphasis in original). Avery also cites to Descamps for its clarification of the “modified categorical approach.” E.g., ECF No. 203 at 14.

         Nonetheless, several district courts have rejected the United States' argument and this court finds it equally unpersuasive. See United States v. Navarro, No. 2:10-CR-2104-RMP, 2016 WL 1253830 (E.D. Wash. Mar. 10, 2016); Johnson, 2016 WL 6542860. While Avery's claim partially relies on Johnson 2010 and Descamps, these cases do not provide him “with a mechanism through which to collaterally attack his armed career criminal designation.” Navarro, 2016 WL 1253830, at *7. Unlike Johnson 2015, neither Johnson 2010 nor Descamps announced a new, substantive, and retroactive rule required to seek relief under § 2255. See Welch, 136 S.Ct. at 1264 (discussing the standard for retroactivity for “new constitutional rules of criminal procedure”); In re Jackson, 776 F.3d 292, 296 (5th Cir. 2015) (holding that Jo ...


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