United States District Court, D. Nevada
R. HICKS UNITED STATES DISTRICT JUDGE.
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. 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).
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.
§ 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.
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.
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).
now brings this § 2255 motion, arguing that, after
Johnson, he no longer qualifies as an armed career
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).
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).
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 the force clause or a
generic offense under the enumerated-offense clause, it is
commonly referred to as an “ACCA predicate” or a
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.
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. 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.
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.
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.
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.
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
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.
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.
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).
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
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
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”). 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.
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.
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 ...