United States v. Jimenez-SeguraUnited States v. Jimenez-Segura
AMENDED MEMORANDUM OPINION1
Defendant, by counsel, has filed a motion pursuant to
I.
On June 20, 2007, defendant pled guilty to two counts (Count 1 and Count 8) of using a firearm in relation to a crime of violence, in violation of
Pursuant to
(A) [that] has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
On June 26, 2015, nearly a decade after defendant‘s sentence was imposed, the Supreme Court issued its decision in Johnson v. United States, 135 S. Ct. 2551 (2015), addressing the definition of “violent felony” in the Armed Career Criminal Act (“ACCA“),
On June 24, 2016, shortly after the Supreme Court‘s decision in Welch, defendant filed a motion pursuant to
On July 12, 2016, the government filed a motion to dismiss defendant‘s § 2255 motion on the ground that collateral review of defendant‘s sentence or conviction is barred by the one-year statute of limitations set forth in
II.
The government‘s motion to dismiss raises a threshold issue as to whether defendant‘s § 2255 motion is timely. Because defendant filed his § 2255 motion approximately a decade after his sentences of conviction and judgment became final, his § 2255 motion would typically be barred by the one-year limitations period set forth in
The Fourth Circuit has explained that “to obtain the benefit of the limitations period stated in § 2255(f)(3), [a movant] must show: (1) that the Supreme Court recognized a new right; (2) that the right ‘has been ... made retroactively applicable to cases on collateral review‘; and (3) that [the movant] filed his motion within one year of the date on which the Supreme Court
recognized the right.” United States v. Mathur, 685 F.3d 396, 398 (4th Cir. 2012) (quoting § 2255(f)(3)). Importantly, however, there is a question as to the meaning of the term “right” as used in § 2255(f)(3). As neither the Supreme Court nor the Fourth Circuit has grappled with this question,4 it is appropriate, indeed necessary, to do so
The Supreme Court has made clear that when interpreting a statute, “the starting point ... is the language itself.” Consumer Prod. Safety Comm‘n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980). In this regard, it is axiomatic that “[i]f the statutory language is plain,” a court “must enforce it according to its terms.” King v. Burwell, 135 S. Ct. 2480, 2489 (2015). At the same time, the Supreme Court has recently explained that statutory interpretation properly proceeds “with reference to the statutory context, ‘structure, history, and purpose,’ ” as well as “common sense.” Abramski v. United States, 134 S. Ct. 2259, 2267 (2014) (quoting Maracich v. Spears, 133 S. Ct. 2191, 2209 (2013)). Thus, “although the analysis properly focuses on the text, the analysis is not necessarily limited to the text.” Angiotech Pharms. Inc. v. Lee, --- F. Supp.3d ---, No. 1:15-cv-1673, 2016 WL 3248352, at *9 (E.D. Va. June 8, 2016).
A.
Statutory analysis of
regard, the term “right” as used in § 2255(f)(3) is generally understood to refer to a legally protected interest that one may claim against another.6 Yet, it has long been recognized that the term “right” is ambiguous;7 depending on the context, for example, a right can be framed broadly or narrowly. See, e.g., Washington v. Glucksberg, 521 U.S. 702, 719-21 (1997) (cautioning that courts must articulate fundamental rights narrowly in the substantive due process context). As relevant here, the term “right” in § 2255(f)(3) could refer to (i) the right asserted by defendant not to be incarcerated pursuant to
(citing United States v. Batchelder, 442 U.S. 114, 123 (1979)). Thus, the ambiguity as to the scope of the term “right” in § 2255(f)(3) must be resolved.
To that end, it is appropriate to turn to § 2255(f)(3)‘s historical context. In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act (“AEDPA“), Pub. L. 104-132, § 104, 110 Stat. 1214 (1996), which amended the law of habeas corpus in various ways, such as the enactment of the statute of limitations scheme set forth in § 2255(f). Importantly, the AEDPA was enacted in 1996 against a background of pre-existing Supreme Court habeas doctrine, including the Supreme Court‘s decision in Teague v. Lane, 489 U.S. 288 (1989), which established thе circumstances in which a Supreme Court decision applies retroactively to cases on collateral review. Specifically, the Supreme Court in Teague held that “a case announces a new rule” for the purpose of retroactive application only “if the result was not dictated by precedent existing at the time when defendant‘s conviction became final.” Id. at 301. Such a “new rule” applies retroactively to cases on collateral review only if the rule (i) places certain kinds of private, primary individual conduct beyond the power of the criminal law authority to proscribe or (ii) is a watershed rule of criminal procedure. Id. at 311.
There can be no doubt that Congress was aware of the Teague framework when it enacted the AEDPA in 1996, as (i) Teague was—and is—the leading case on the non-retroactivity doctrine,8 (ii) Teague was an interpretation of the very statutory scheme Congress
amended with the AEDPA,9 (iii) several provisions of the AEDPA contain language that tracks the Teague framework,10 and (iv) the legislative history refers to the principles of habeas retroactivity on collateral review.11 Thus,
There are compelling reasons to think Congress deliberately selected the term “right” in § 2255(f)(3) as a deviation from the Teague framework. For one, other provisions enacted as part of the AEDPA directly incorporate the relevant language of Teague. Section 2255(h)(2), for example, stands in stark contrast to the language of § 2255(f)(3), as § 2255(h)(2) provides that “[a] second or successive motion must be certified ... by [an appellate panel] to contain ... a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court
that was previously unavailable.”
That Congress intended for § 2255(f)(3) to deviate in certain respects from the Teague framework finds further support in another phrase of that provision. Specifically, a qualifying “right” under § 2255(f)(3) must have been “recognized by the Supreme Court.”
instances than whenever a new rule in the Teague sense is announced. This lends credence to the conclusion that Congress‘s choice of the term “right” rather than “rule” in § 2255(f)(3) was also a deviation from the Teague framework intended to limit application of § 2255(f)(3).
If Congress intended for “right” and “rule” to have different meanings, as the foregoing analysis suggests, there is good reason to conclude that “right” should be interpreted as a broad principle rather than as a narrow application of a principle to a particular set of facts or to a particular statute. To begin with, the terms “right” and “rule,” as generally understood, have distinct meanings. A “right,” аs already noted, is generally understood to mean a protected interest that one may claim against another,14 whereas a “rule” is generally understood to mean a principle that is a statement of a legal right as applied to a particular set of facts.15 This understanding accords with the Supreme Court‘s use of “rule” in the Teague framework. For example, in Johnson, the Supreme Court applied a broad right—the right to fair notice of prohibited conduct—to a particular statute, and as a result, announced a new rule made retroactive under Teague, namely that the ACCA residual clause is unconstitutional. See Johnson, 135 S. Ct. at 2556-57, 2563. Thus, if a “rule” is a narrow application of a legal right, and if “rule” and “right” have different meanings, then under a plain reading of § 2255(f)(3), the term “right” refers to a general protected interest that a defendant may claim rather than a particular application of that protected interest to a particular set of facts. Under this reading of the statute, § 2255(f)(3) does not apply to defendant‘s case because the Supreme Court in
Johnson did not recognizе a new right, but instead applied a well-settled right to a particular statute, and therefore announced a new rule.
As already noted, the Supreme Court and the Fourth Circuit have not yet grappled with the ambiguity of the term “right” in § 2255(f)(3).16 Nor has any decision of another circuit been found that adequately addresses the issue. The widespread inattention may have a simple explanation; when the Supreme Court announces a new rule made retroactive under the Teague framework, it usually also announces a new right,17 and therefore, the
Importantly, however, with respect to the Supreme Court‘s recent decision in Johnson, the distinction between a right and a rule is material to the application of § 2255(f)(3). This is so because as already noted, the right in issue in Johnson was not a new right, but was instead the well-settled prohibition against unconstitutional vagueness in criminal statutes, whereas the application of that right resulted in a newly rеcognized rule, namely that the ACCA residual
clause is unconstitutionally vague. See Johnson 135 S. Ct. at 2556, 2557 (“Our cases establish that the [g]overnment violates [the Due Process Clause] by taking away someone‘s life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.“) (citing Kolender v. Lawson, 461 U.S. 352, 357-58 (1983)).18 Thus, under a construction of the term “right” in § 2255(f)(3) that distinguishes that term from the term “rule” as used in the Teague framework, the Supreme Court‘s decision in Johnson did not trigger a new one-year limitations period pursuant to § 2255(f)(3) because that decision simply recognized a new rule, which was made retroactive in Welch, but did not recognize a new right within the meaning of § 2255(f)(3), as the right asserted by the petitioner in Johnson was the well-settled right not to be convicted or sentenced pursuant to an unconstitutionally vague law. In this regard, the Supreme Court‘s decision in Johnson brings the ambiguity of the term “right” in § 2255(f)(3) to the surface, perhaps for the first time.
B.
Of course, there are also compelling reasons not to read “right” and “rule” as taking different meanings in § 2255. As just discussed, the subtle distinction between a right and a rule is cast into sharp
Of course, “the passage of time can undermine the premises behind a particular statute in ways that the enacting legislature did not expect.” Nelson, supra, at 926-27. Here, Welch makes clear that if Congress enacted § 2255(f)(3) on the premise that every retroactive new rule would also recognize a new right, that premise is no longer intact. When such situations arise, one interpretative approach is to view the formula of words Congress enacted as set in stone and to apply the traditional canons of interpretation to the text of the statute. See
For one, this construction avoids an anomalous result that would follow from the construction of § 2255(f)(3) articulated in Part II-A, supra. Specifically, under an interpretation of “right” that distinguishes that term from the term “rule” in the Teague sense, no defendant could bring a § 2255 motion relying on Johnson pursuant to § 2255(f)(3). Such a conclusion, though seemingly consistent with the text of the statute, would be at odds with the spirit of the Supreme Court‘s decision in Welch, which has the effect of enabling prisoners sentenced under the ACCA residual clause before Johnson was decided to bring collateral attacks on their sentences on the basis of Johnson. See Welch, 136 S. Ct. at 1268. Indeed, it could be argued that the Supreme Court in Welch rejeсted by implication a construction of the term “right” that precludes the effective vindication of most § 2255 motions premised on Johnson19 in favor of a construction that equates the term “right” with the term “rule” in the Teague sense.
In this regard, the result in Welch comports only with an interpretation of § 2255(f)(3) that takes the term “right” to mean “rule” in the Teague sense. In Welch, the petitioner had been sentenced pursuant to the ACCA residual clause in 2010, and did not file his § 2255 motion until December 2013, long after the expiration of the general one-year limitations period set forth in
mention that petitioner could not rely on § 2255(f)(3) pursuant to Johnson. Thus, although the Supreme Court in Welch did not squarely address the issue, the result reached in Welch rests on the premise that once Johnson was made retroactive, a new one-year statutory period began to run pursuant to § 2255(f)(3); without this premise, the petitioner‘s § 2255 motion would have been untimely. Accordingly, it appears that the Supreme Court in Welch rejected by implication the conclusion that the Supreme Court in Johnson did not recognize a new right for purposes of § 2255(f)(3).
Moreover, equating the term “right” in § 2255(f)(3) with the term “rule” in the Teague sense finds further support in the operation of § 2255(f)(3). Specifically, § 2255(f)(3) operates in connection with the Teague non-retroactivity doctrine insofar as a “newly recognized” right opens a new one-year statutory window for prisoners only “if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.”
In sum, it is appropriate here to construe the term “right” in § 2255(f)(3) to mean “rule” as that term is used in the Teague framework. Accordingly, the question рresented is whether a defendant convicted under the residual clause of
C.
As the government correctly contends, the breadth of the rule established in Johnson does not cover
Similarly, the Fourth Circuit sitting en banc recently noted that it is unclear whether Johnson operates to invalidate the residual clause of § 924(c). See United States v. Graham, --- F.3d ---, No. 12-4659, 2016 WL 3068018, *1 n.1 (4th Cir. May 31, 2016) (en banc). Recent district court decisions also reflect uncertainty whether the rationale of Johnson operates to invalidate the residual clause of § 924(c), as there is some question whether the categorical approach, a necessary premise to the result reached in Johnson,21 applies in the context of § 924(c).22
In sum, defendant‘s argument—that the residual clause of § 924(c) is unconstitutionally vague—simply was not a rule announced in Johnson. Accordingly, defendant‘s § 2255 motion
must be dismissed as untimely because, although § 2255(f)(3) did grant a year-long window for defendants with valid Johnson claims, § 2255(f)(3) does not apply here.
III.
Even assuming, arguendo, that defendant‘s Johnson claim is timely pursuant to
In opposition to the conclusion reached here, defendant contends that Hobbs Act robbery does not categorically qualify as a crime of violence pursuant to the force clause of § 924(c) because Hobbs Act robbery does not, in a strict sense, entail the use or threatened use of physical force against another. This argument fails because (i) the argument is premised on the flawed assumption that the “categorical approach”25 applies to § 924(c) convictions pursuant to a plea agreement, and (ii) even assuming, arguendo, that the categorical approach applies in this context, Hobbs Act robbery qualifies as a crime of violence pursuant to the force clause of § 924(c) because Hobbs Act robbery entails the use or threatened use of physical force against another.
A.
The “categorical approach,” as developed in Taylor v. United States, 495 U.S. 575, 598-602 (1990), does not apply when determining whether a crime to which a defendant pled guilty qualifies as a crime of violence pursuant to § 924(c). Accordingly, the question whether Hobbs Act robbery qualifies as a § 924(c) crime of violence depends on the facts to which defendant pled guilty, not on an abstract analysis of the elements of Hobbs Act robbery, as would be required under the categorical approach. See id.
In this regard, “it is important to recognize that the categorical approach is a judicially devised mode of analysis born and developed in the sentencing context for the purpose of ensuring that defendants are not punished for facts that are not found beyond a reasonable doubt by a jury” or that are not admitted by a defendant by virtue of a plea agreement. United States v. McDaniels, 147 F. Supp.3d 427, 430 (E.D. Va. 2015). Indeed, the Supreme Court in Taylor introduced thе categorical approach in the context of the ACCA. Id. at 600. There, the Supreme Court held that a sentencing court must employ a “categorical approach” in determining whether a crime counts as a predicate offense for purposes of an ACCA sentencing enhancement for violations of
The Supreme Court has also applied the categorical approach, as articulated in Taylor, in the context of the Immigration and Nationality Act (“INA“),
[previously] ‘convicted’ of, ... not what acts he committed.”
Until recently, application of the categorical approach was limited to the ACCA sentencing context and to the INA context. Yet, in 2015, the Fourth Circuit, for the first time, applied the categorical approach in another context. Specifically, the Fourth Circuit applied the categorical approach in a case involving the question whether sex trafficking by force, fraud, or coercion qualified as a § 924(c) crime of violence. See United States v. Fuertes, 805 F.3d 485, 499 (4th Cir. 2015). There, the Fourth Circuit reasoned that the sex trafficking offense “allows for both violent and nonviolent means of commission,” and therefore does not qualify as a § 924(c) crime of violence under the categorical approach.
Defendant argues that because the Fourth Circuit applied the categorical approach in Fuertes, it follows thаt the categorical approach must be applied to all determinations whether a crime qualifies as a § 924(c) crime of violence. Yet, contrary to defendant‘s contention, a close examination of Fuertes reveals that the holding of Fuertes is significantly narrower than defendant suggests and that Fuertes does not compel application of the categorical approach to § 924(c) in the present case.
Importantly, the § 924(c) issue arose in Fuertes as a result of a jury instruction.
respect to his § 924(c) conviction on the ground that the district court erred in instructing the jury that “sex trafficking by force, fraud, or coercion is categorically a crime of violence.”
On appeal, the jury instruction in Fuertes presented two issues: (i) whether a district court may instruct a jury that a predicate offense categorically qualified as a § 924(c) crime of violence, and (ii) assuming a district court may so instruct a jury, whether the district court‘s instruction that the particular sex offense in issue categorically qualified as a § 924(c) crime of violence amounted to plain error. Importantly, the Fourth Circuit had no occasion to address the first question, as the Fourth Circuit held that the district court had committed plain error with respect to the second question, and accordingly the Fourth Circuit vacated the defendant‘s § 924(c) conviction and remanded for entry of acquittal on that count.
predicate offense categorically qualifies as a § 924(c) crime of violence or whether a district court must instead allow a properly instructed jury to decide whether the particular commission of a predicate offense qualifies as a § 924(c) crime of violence. As this question
In this regard, it is inappropriate—and indeed perhaps unconstitutional—to apply the categorical approach to determine whether a predicate offense is a “crime of violence” in the context of § 924(c) jury instructions, and by extension in the context of the entry of a guilty plea. This is so because the phrase “crime of violence” is an element of § 924(c)—rather than a sentencing enhancement—and therefore “must be submitted to a jury and found beyond a reasonable doubt.” See Alleyne v. United States, 133 S. Ct. 2151, 2158 (2013). Some offenses may be categorically crimes of violence, while others may be categorically not crimes of violence; that is, the commission of some crimеs may always be violent, while the commission of other may never be violent.30 In any event, the task of assessing whether the facts of the particular Hobbs Act robbery alleged fit the definition of “crime of violence” set forth in § 924(c) belongs to a properly instructed jury. Or where, as here, a defendant pled guilty to a § 924(c) offense predicated on Hobbs Act robbery, it is appropriate for a court to assess whether the underlying facts of the particular commission of Hobbs Act robbery—to which the defendant has admitted—involved “the use, attempted use, or threatened use of physical force against the person or property of another.”
predicate offense is a Hobbs Act robbery, even in the most violent of circumstances.” McDaniels, 147 F. Supp.3d at 432.
Moreover, there is no need to apply the categorical approach in the present case because the practical considerations that gave rise to the categorical approach in the ACCA sentencing context—which also justify application of the categorical approach in INA context—are not present here. Specifically, in the contexts of the ACCA and the INA, the categorical approach is necessary to avoid the difficult, often impossible, situations where courts would be required to re-try the factual bases for prior convictions. See Taylor, 495 U.S. at 600-02. Such practical difficulties are not present where, as here, the factual basis for the predicate offenses in issue is initially presented—either during trial or during a plea hearing—along with the § 924(c) charge against the defendant.
In sum, the “categorical approach,” as developed in Taylor, 495 U.S. at 598-602, does not apply when determining whether a crime to which a defendant pled guilty qualifies as a crime of violence pursuant to § 924(c). Accordingly, the question whether Hobbs Act robbery qualifies as a § 924(c) crime of violence depends on the facts to which defendant pled guilty, not on an abstract analysis of the elements of Hobbs Act robbery, as would be required under the categorical approach. See
In this regard, there can be no doubt that the underlying facts of the Hobbs Act robberies that served as predicate
defendant pled guilty, defendant admitted that he committed these crimes by using, carrying, and brandishing a handgun in order to take or attempt to take from the presence of employees of each check cashing store, аgainst the employees’ will, money belonging to the store.
B.
Even assuming, arguendo, that the categorical approach applies here, under that approach, Hobbs Act robbery qualifies as a crime of violence pursuant to the force clause of § 924(c) because the definition of Hobbs Act robbery—“the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury ... to his person or property,”
In opposition to this conclusion, defendant contends that the definition of Hobbs Act robbery does not, in a strict sense, entail the use or threatened use of physical force against another, as that statute can be violated by other means. In support of this contention, defendant relies on United States v. Torres-Miguel, 701 F.3d 165 (4th Cir. 2012). There, the Fourth Circuit аddressed whether a defendant‘s prior conviction under a California statute warranted a sentencing enhancement pursuant to U.S.S.G. § 2L1.2 insofar as the prior crime had an element of “violent force.”32 Id. at 167. The California statute under which the defendant had been previously convicted required proof that the defendant willfully threatened to commit a crime that “will result in death or great bodily injury to another.” Id. at 168 (citing
element, and therefore did not qualify as a “crime of violence” for sentencing purposes because the threat of any bodily injury, “even serious bodily injury or death,” does not necessarily require the use of physical force, let alone “violent force.” Id. at 168-69. As an example, the Fourth Circuit noted that a defendant could violate the California statute “by poisoning another, which involves no use or threatened use of force.” Id. (citing United States v. Cruz-Rodriguez, 625 F.3d 274, 276 (5th Cir. 2010)).
Importantly, however, as several courts have recognized, the Supreme Court recently rejected the rationale of Torres-Miguel in United States v. Castleman, 134 S. Ct. 1405, 1415 (2014).33 At issue in Castleman
Court‘s reasoning in Castleman applies here and requires rejection of defendant‘s argument based on the Torres-Miguel decision.
Moreover, Hobbs Act robbery clearly qualifies as a crime of violence under the force clause of § 924(c) because the definition of Hobbs Act robbery tracks the definition of common-law robbery,34 which reflects the content of the force clause. The Fourth Circuit has held that common-law robbery is “the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation.” United States v. Presley, 52 F.3d 64, 69 (4th Cir. 1995). Importantly, “[v]iolence” is defined as “the use of force” and “[i]ntimidation” is defined as “the threat of the use of force.” Id. at 69.35 The Hobbs Act uses the phrase “fear of injury” rather than “intimidation,” but these terms are functionally equivalent, as the test for intimidation is “whether an ordinary person ... reasonably could infer a threat of bodily harm from the defendant‘s acts.” United States v. Woodrup, 86 F.3d 359, 363-64 (4th Cir. 1996) (internal quotation marks and citation omitted).
Ample case law confirms the conclusion that Hobbs Act robbery can serve as a crime of violence as defined by the force clause of § 924(c). Indeed, a Hobbs Act robbery served as the predicate offense for a § 924(c) conviction in a Supreme Court case decided after Miguel-Torres. See Alleyne, 133 S. Ct. at 2155, 2162-63 (reviewing a § 924(c) conviction for which Hobbs Act robbery served as the predicate offense and holding that each element of the § 924(c) offense had
to be submitted to the jury). Moreover, other circuits have consistently affirmed § 924(c) convictions where the predicate offense is a Hobbs Act robbery,36 and district courts in this circuit
Thus, even assuming that the categorical approach applies here, Hobbs Act robbery qualifies as a crime of violence pursuant to the force clause of § 924(c) because the definition of Hobbs Act robbery entails “the use, attempted use, or threatened use of physical force against the person or property of another.”
In sum, assuming, arguendo, that defendant‘s Johnson claim is timely pursuant to § 2255(f), his § 2255 motion nonetheless fails because defendant‘s two § 924(c) convictions do not depend on the residual clause of § 924(c); instead, defendant‘s two § 924(c) convictions are based on Hobbs Act robbery offenses,38 and Hobbs Act robbery is unquestionably a crime of violence pursuant to the force clause set forth in § 924(c).
IV.
Accordingly, the government‘s motion to dismiss must be granted, and defendant‘s § 2255 motion must be denied because that motion is untimely pursuant to
An appropriate Order has issued.
Alexandria, Virginia
September 8, 2016
T. S. Ellis, III
United States District Judge