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United States v. Haas

United States District Court, D. Nevada

October 1, 2019

UNITED STATES OF AMERICA, Respondent/Plaintiff,
v.
RANDY HAAS, Petitioner/ Defendant.

          ORDER

          LARRY R. HICKS UNITED STATES DISTRICT JUDGE

         Before 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).

         Upon 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).

         I. BACKGROUND

         On 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.

         On June 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.

         On July 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).

         On 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.

         II. LEGAL STANDARD

         Pursuant 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).

         III. DISCUSSION

         A. Haas's claim is not waived or procedurally barred.

         The 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 agreement.

         Second, 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 ...


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