United States District Court, D. Nevada
R. HICKS UNITED STATES DISTRICT JUDGE
the court is petitioner Randy Haas' motion, with
supplemental briefing as ordered by the court, to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §
2255. ECF Nos. 37, 39, 40, 41. The United States filed an
opposition, (ECF No. 44), to which Haas replied, (ECF No.
45). Subsequently, the Government filed a motion for leave to
advise the court of relevant new authority, United States
v. Blackstone, 903 F.3d 1020 (9th Cir. 2018). ECF No.
47. Based on this relevant new authority, Hass then filed a
motion to stay his § 2255 motion pending the resolution
of the mandate or until the United States Supreme Court
resolved the issue of certiorari in
Blackstone. ECF No. 48. The Government filed an
opposition to the stay (ECF No. 49), to which Haas replied
(ECF No. 50).
review of the pending motions, the Court denies Haas's
motion to vacate his sentence under § 2255, denies his
motion to stay as moot, and denies the Government's
motion for leave to advise the court of Blackstone
as moot, in light of the recent Supreme Court ruling in
United States v. Davis, 588 U.S.__, 139 S.Ct. 2319,
204 L.Ed.2d 757 (2019).
September 29, 2010, Haas was indicted for (1) attempted
interference with commerce by robbery, under 18 U.S.C. §
1951 (“attempted Hobbs Act robbery”); (2)
discharge of a firearm during a crime of violence, in
violation of 18 U.S.C. § 924(c)(1)(A)(ii); and (3) felon
in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2), after he attempted to
take $1, 800.00 worth of 80-milligram OxyContin pills from
“Mike, ” a drug dealer, brandishing and
discharging a firearm in the process. ECF No. 1. On March 11,
2011, a plea agreement was reached in which Haas agreed to
plead guilty to Count II, discharging a firearm during a
crime of violence, in exchange for the Government dismissing
Counts I and III. ECF No. 27. The same day, in open court,
Haas changed his plea and the court deferred accepting or
rejecting the plea agreement until sentencing. ECF No. 26.
The court ultimately accepted the plea agreement and Haas was
sentenced on July 11, 2011, to 120-months custody, with
credit for time served, and 3-years supervised release with
special conditions. ECF Nos. 33, 35.
20, 2016, Haas filed an abridged motion to vacate, set aside,
or correct sentence under 28 U.S.C. § 2255, in light of
the United States Supreme Court's decision in Johnson
v. United States, 135 S.Ct. 2551 (2015)
(“Johnson”). ECF No. 37. Haas then filed
his full brief on the issues on December 9, 2016. ECF No. 39.
12, 2017, the court granted Haas the opportunity to file
supplemental briefing on whether attempted Hobbs Act robbery
is a crime of violence and invited the Government to respond.
ECF No. 40. Haas provided said briefing, (ECF No. 41), to
which the Government responded (ECF No. 44), and Haas replied
(ECF No. 45).
October 3, 2018, the Government filed a motion for leave to
advise the court of new relevant legal authority,
Blackstone, arguing that Haas's claims are time
barred under the new precedent. ECF No. 47. In response, Haas
filed a motion to stay his §2255 motion to vacate
pending resolution of Blackstone, either on
rehearing en banc before the Ninth Circuit or
resolution of the issue of certiorari, whichever is
later. ECF No. 48. Accordingly, the Government opposed the
stay (ECF No. 49), to which Haas replied (ECF No. 50). The
court now rules on all pending motions before the court.
to 28 U.S.C. § 2255, a petitioner may file a motion
requesting the court which imposed sentence to vacate, set
aside, or correct the 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 such
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). When a petitioner seeks relief
pursuant to a right newly recognized by a decision of the
United States Supreme Court, a one-year statute of
limitations applies. 28 U.S.C. § 2255(f). That one-year
limitation period begins to run from "the date on which
the right asserted was initially recognized by the Supreme
Court." Id. § 2255(f)(3).
Haas's claim is not waived or procedurally
Government argues that Haas waived his right to challenge his
sentence because (1) his plea agreement contains a
collateral-attack waiver, and (2) he failed to raise the
issue on direct appeal. ECF No. 44 at 3. These arguments are
unavailing. First, the Ninth Circuit has held that an appeal
waiver in the plea agreement does not bar a defendant's
challenge to his sentence based on an unconstitutionally
vague statute. United States v. Torres, 828 F.3d
1113, 1125 (9th Cir. 2016) (“A waiver of appellate
rights will also not apply if a defendant's sentence is
‘illegal,' which includes a sentence that
‘violates the constitution.'”). As Haas
argues that his sentence should be vacated because it was
based on the now unconstitutionally vague residual clause of
§ 924(c), his motion is not barred by the plea
Haas is not barred from collaterally attacking his sentence
because he failed to do so on direct appeal. Under §
2255(f)(3), Haas is entitled to challenge his sentence within
one year of "the date on which the right [he] assert[s]
was initially recognized by the Supreme Court."
(emphasis added). Courts in this District have previously
held that a petition challenging the constitutionality of
§ 924(c)'s residual clause brought within one year
of Johnson was timely. See United States v.
Bonaparte, No. 2:12-cr-132-JAD-CWH-2, 2017 WL 3159984,
at *2 (D. Nev. July 25, 2017); United States v. Harrison
Johnson, No. 2:12-cr-00336-JAD-CWH, 2018 WL 3518448, at
*2 (D. Nev. July 19, 2018) (“Harrison
Johnson”). As Haas' initial motion was brought
within 1 year of Johnson, this court likewise finds
it timely. However, the court need not rest its decision on
Johnson alone ...