Summers v. Feather
119 F. Supp. 3d 1284
D. Or.2015Background
- Petitioner is a federal inmate serving a 262-month sentence after being sentenced as an armed career criminal (ACCA) based on at least three prior Washington convictions for second-degree burglary.
- Petitioner previously filed a § 2255 motion in 2005 which was denied; he later filed a § 2241 habeas petition invoking the § 2255 savings clause to challenge the ACCA enhancement based on intervening Supreme Court decisions.
- Petitioner argues Descamps, Begay, and later Johnson (and related Ninth Circuit decisions) show Washington second-degree burglary is not a categorical ACCA predicate.
- Magistrate Judge Sullivan recommended granting the § 2241 petition, vacating the ACCA-enhanced sentence, and remanding for re-sentencing because Washington’s burglary statute is indivisible and non-generic; the residual clause is invalid under Johnson.
- District Judge Hernández adopted the Findings & Recommendation, overruled respondent’s objections, vacated the sentence, and remanded for re-sentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioner may use § 2241 via the § 2255 savings clause (escape hatch) | Petitioner: actual innocence of ACCA enhancement; never had unobstructed shot because key precedents arose after his § 2255 | Respondent: generally § 2255 is proper remedy; but conceded improper ACCA enhancement can satisfy savings clause | Held: Escape hatch applies — petitioner shows actual innocence of enhanced sentence and lacked an unobstructed procedural shot |
| Whether the ACCA residual clause can support enhancement | Petitioner: Johnson voided the residual clause for vagueness, so cannot be relied on | Respondent: argued residual clause or other theories might salvage enhancement | Held: Residual clause invalid under Johnson; cannot be used here |
| Whether Washington second-degree burglary is a categorical ACCA burglary predicate or a divisible statute allowing the modified categorical approach | Petitioner: Washington’s broad definition of “building” makes the statute non-generic and indivisible, so cannot be an ACCA predicate | Respondent: urged that modified categorical approach or state-court records could show generic burglary | Held: Washington statute is indivisible; definition of “building” lists alternative means (not separate elements) and jurors need not agree on type, so convictions are non-generic and cannot qualify as ACCA predicates |
| Remedy and immediate release request | Petitioner: asks for immediate conditional release because he already served over statutory maximum without enhancement | Respondent: opposed immediate release; argued sentencing court discretion and guideline issues | Held: Sentence vacated and case remanded for re-sentencing; immediate release not ordered — sentencing court to recalculate and consider release pending proceedings |
Key Cases Cited
- United States v. Booker, 543 U.S. 220 (2005) (constitutional rule affecting sentencing procedures)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (clarifies categorical vs. modified categorical approach)
- Begay v. United States, 553 U.S. 137 (2008) (construes "violent felony" under ACCA)
- Johnson v. United States, 135 S. Ct. 2551 (2015) (holding ACCA residual clause void for vagueness)
- Taylor v. United States, 495 U.S. 575 (1990) (defines "generic burglary" for sentencing comparisons)
- Wenner v. United States, 351 F.3d 969 (9th Cir. 2003) (Washington burglary definitions broader than federal generic burglary)
- Rendon v. Holder, 764 F.3d 1077 (9th Cir. 2014) (test for statute divisibility — whether jurors must agree on alternatives)
- Marrero v. Ives, 682 F.3d 1190 (9th Cir. 2012) (§ 2255 savings-clause jurisdiction principles)