Percy v. USA

Filing 29

ORDER ADOPTING REPORT AND RECOMMENDATION 26 - Plaintiff's Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 (Doc. 1 ) is denied. The Court grants a Certificate of Appealability because dismissal of the Petition may be debatable among jurists of reason. (See document for further details). Signed by Judge David G Campbell on 7/3/17. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Shawn Tyrone Percy,
Petitioner,

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ORDER

v.

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No. CV-16-02066-PHX-DGC

USA,

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Respondent.

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Magistrate Judge Deborah M. Fine has issued a Report and Recommendation that

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the Court deny Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence under 28

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U.S.C. § 2255 (Doc. 1). Doc. 26 (“R&R”). Petitioner filed an objection (Doc. 27) and

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the government replied (Doc. 28). The Court will adopt the R&R.

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I.

Background.

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On October 7, 1999, Petitioner Shawn Tyler Percy was found guilty by a jury of

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second degree murder in violation of 18 U.S.C. § 1111, and discharging a firearm during

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and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(iii).

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Doc. 1, ¶ 9. Petitioner was sentenced to 280 months in prison, consisting of 160 months

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on the murder count and 120 months on the § 924(c) count. Id.

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On June 26, 2016, Petitioner, through counsel, filed a Motion to Vacate, Set

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Aside, or Correct Sentence under 28 U.S.C. § 2255. Id. Petitioner asserts that his

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sentence is unconstitutional under Johnson v. United States, 135 S. Ct. 2551 (2015). Id.

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In Johnson, the Supreme Court held that the residual clause in the definition of a “violent

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felony” in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B) (“ACCA”), is

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unconstitutionally vague. 135 S. Ct. at 2557. Petitioner argues that his sentence under 18

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U.S.C. § 924(c)(1)(A)(iii) is likewise unconstitutional. Doc. 1. Petitioner’s sentence

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expiration date on the second degree murder charge alone (not considering the § 924(c)

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sentence) was July 7, 2016. Doc. 11.

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On September 6, 2016, the government sought a stay of these proceedings pending

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the Supreme Court’s decision in Sessions1 v. Dimaya, No. 15-1498 (cert. granted Sept.

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29, 2016), and the Ninth Circuit’s decision in United States v. Begay, No. 14-10080.

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Doc. 5. On December 12, 2016, the Court denied the stay request. Doc. 18.

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The government subsequently filed a limited answer to Petitioner’s motion,

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arguing that: (1) the motion is untimely, and (2) the motion is procedurally barred.

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Doc. 20. On April 13, 2017, Judge Fine issued an R&R concluding that Petitioner’s

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motion is not untimely but is procedurally barred, and recommending that the Court deny

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the motion. Doc. 26.

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II.

Standard of Review.

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The Court must undertake de novo review of those portions of the R&R to which

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specific objections are made. The Court may accept, reject, or modify, in whole or in

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part, the findings or recommendations. Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1).

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III.

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Analysis.
Petitioner argues that his motion is not procedurally barred, and asks the Court to

grant his motion or grant Petitioner a certificate of appealability. Doc. 27.

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A.

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“Where a defendant has procedurally defaulted a claim by failing to raise it on

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direct review, the claim may be raised in habeas only if the defendant can first

Procedural Default.

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Renamed from “Lynch” following the appointment of the new Attorney General.
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demonstrate either cause and actual prejudice, or that he is actually innocent.” Bousley v.

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U.S., 523 U.S. 614, 622 (1998) (internal quotation marks and citations omitted).

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Cause may be shown when a claim is “novel.” See Reed v. Ross, 468 U.S. 1, 15

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(1984). A claim can be considered novel where a Supreme Court decision: (1) “explicitly

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overrule[s] one of [the Court’s] precedents”; (2) “may overtur[n] a longstanding and

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widespread practice to which th[e] Court has not spoken, but which a near-unanimous

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body of lower court authority has expressly approved”; or (3) when the Court

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“‘disapprove[s] a practice th[e] Court arguably has sanctioned in prior cases.’” Id. at 17.

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In Johnson, the Supreme Court expressly overruled its own precedent: “We hold that

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imposing an increased sentence under the residual clause of the Armed Career Criminal

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Act violates the Constitution’s guarantee of due process. Our contrary holdings in James

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[v. United States, 550 U.S. 192 (2007)] and Sykes [v. United States, 564 U.S. 1 (2011)]

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are overruled.” 135 S. Ct. at 2557.

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In her R&R, Judge Fine found that Petitioner’s claim was novel under the first
condition set forth in Ross. Doc. 26 at 6-7. Neither party objects to this finding.

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Next, a petitioner must establish prejudice. To establish prejudice, a petitioner

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must “demonstrate[e] ‘not merely that the errors . . . [in the proceedings] created a

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possibility of prejudice, but that they worked to his actual and substantial disadvantage,

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infecting his entire [proceedings] with error of constitutional dimensions.’” United States

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v. Braswell, 501 F.3d 1147, 1150 (9th Cir. 2007). Petitioner must show a “reasonable

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probability” that, without the error, the result of the proceedings would have been

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different. Strickler v. Greene, 527 U.S. 263, 289 (1999).

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In the R&R, Judge Fine concluded that second degree murder remains a crime of

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violence after the U.S. Supreme Court’s decision in Johnson and after Fernandez-Ruiz,

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466 F.3d at 1129 and its Ninth Circuit progeny. Doc. 26 at 7-12. Thus, Judge Fine

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concluded that Petitioner was unable to show that he suffered actual prejudice.

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Petitioner objects to Judge Fine’s conclusion that second degree murder remains a

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crime of violence. Doc. 27. Petitioner argues that if second degree murder is properly

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categorized as not being a crime of violence, he can establish prejudice as required by

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step two. Id.

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B.

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Judge Fine summarized Petitioner’s argument as follows:

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Movant contends that second-degree murder pursuant to 18 U.S.C. § 1111
is not a “crime of violence” under the force clause because the crime can be
committed through the reckless use of force, which he argues does not
comport with the force clause of § 924(c)(3)(A), citing Fernandez-Ruiz,
466 F.3d at 1129. (Doc. 1 at 3, Doc. 25 at 5) Movant asserts that after
Fernandez-Ruiz, Ninth Circuit case law requires that applicable statutory
definitions of a “crime of violence” do not include crimes involving the
reckless use of force. (Doc. 1 at 3, Doc. 25 at 5-7)

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Is Second Degree Murder a Crime of Violence?

Doc. 26 at 7-8.

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The Ninth Circuit has explained that before its decision in Fernandez-Ruiz, it was

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“well established in this circuit that crimes involving the reckless use of force could be

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crimes of violence[,] based on the conclusion that ‘recklessness requires conscious

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disregard of a risk of a harm that the defendant is aware of.’” Fernandez-Ruiz, 466 F.3d

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at 1126 (quoting United States v. Trinidad-Aquino, 259 F.3d 1140, 1146 (9th Cir. 2001)).

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But after the U.S. Supreme Court’s decision in Leocal v. Ashcroft, 543 U.S. 1, 12 (2004),

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the Ninth Circuit reversed direction in Fernandez-Ruiz. Id. The Fernandez-Ruiz court

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recognized that the Leocal Court reserved the question of whether crimes of violence

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may include the reckless use of force. Id. at 1127-29. But the Ninth Circuit concurred

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with decisions from the Third and Fourth Circuits that the “reasoning of Leocal – which

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merely holds that using force negligently or less is not a crime of violence – extends to

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crimes involving the reckless use of force.” Id. at 1127-29. The Ninth Circuit found the

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Third Circuit’s opinion in Oyebanji v. Gonzales, 418 F.3d 260 (3d Cir. 2005), persuasive.

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Id. Oyebanji addressed the conviction of a Nigerian citizen under New Jersey law for

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vehicular homicide. Id. at 1129. The state conviction required proof of recklessness,

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defined in part as “‘consciously disregard[ing] a substantial and unjustifiable risk that [a]

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material element [of an offense] exists or will result from [the actor’s] conduct.’” Id.

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(quoting Oyebanji, 418 F.3d at 263 n. 4, in turn quoting N.J. Stat. Ann. § 2C:2-2(3)).

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Oyebanji concluded that “even though New Jersey’s definition of recklessness involved

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conscious disregard of a substantial and unjustifiable risk, the reckless use of force was

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not sufficiently ‘intentional’ to prevent an offense from being accidental.” Fernandez-

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Ruiz, 466 F.3d at 1129. The Ninth Circuit found that the petitioner’s misdemeanor

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domestic violence conviction was not a categorical crime of violence under 18 U.S.C.

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§ 16(a). Id. at 1132. The Ninth Circuit held that “[i]n light of Leocal, we expressly

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overrule our cases holding that crimes of violence under 18 U.S.C. § 16 may include

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offenses committed through the reckless, or grossly negligent, use of force.” Id.

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Since its decision in Fernandez-Ruiz, the Ninth Circuit has attempted to clarify its

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position on crimes of violence. In Covarrubias Teposte v. Holder, 632 F.3d 1049 (9th

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Cir. 2011), the Ninth Circuit considered whether a petitioner’s California state felony

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conviction for shooting at an inhabited dwelling or vehicle was categorically a crime of

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violence and thus an aggravated felony that would make the petitioner, an alien,

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removable. Id. at 1051. The Ninth Circuit characterized its holdings on the definition of

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a crime of violence in U.S.C. §16, post Fernandez-Ruiz, as follows:

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We have since interpreted the en banc decision in Fernandez-Ruiz to mean
that “reckless uses of force is not sufficient to support a finding of
commission of a crime of violence within the meaning of § 16(b).” MaltaEspinoza v. Gonzales, 478 F.3d 1080, 1084 (9th Cir. 2007). “The effect of
our holdings is that in order to be a predicate offense under either 18 U.S.C.
§ 16 approach, the underlying offense must require proof of an intentional
use of force or a substantial risk that force will be intentionally used during
its commission.[”] United States v. Gomez-Leon, 545 F.3d 777, 787 (9th
Cir. 2008). Thus our precedent seems squarely to place crimes motivated
by intent on a pedestal. While pushing off other very dangerous and violent
conduct that, because not intentional, does not qualify as a “crime of
violence.”
Id. at 1053 (emphasis in original).

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Petitioner argues Covarrubias Teposte recognizes a “bright-line rule between

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crimes that require intentional conduct, which can be crimes of violence, and crimes

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through ‘very dangerous and violent conduct’ that nevertheless is not intentional, which

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are not crimes of violence.” Doc. 27 at 4. Judge Fine rejected Petitioner’s argument:

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While Movant argues his second-degree murder conviction is not a “crime
of violence” because that crime can be committed “merely recklessly,” in
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fact, the lowest mens rea applicable to § 1111 second-degree murder
requires that the act be committed “recklessly with extreme disregard for
human life,” a higher standard than mere recklessness. With regard to
second-degree murder, the Ninth Circuit has recognized this higher
standard approaches “a state of intentionality.” See United States v.
Pineda-Doval, 614 F.3d 1019, 1039 (9th Cir. 2010) (noting it had held that
“merely reckless driving cannot provide the basis for a second-degree
murder conviction” because “‘something more’” was needed “to establish
the malice aforethought necessary to prove second-degree murder”); United
States v. Lesina, 833 F.2d 156, 159 (9th Cir. 1987) (stating that “disregard
for human life becomes more callous, wanton or reckless, and more
probative of malice aforethought, as it approaches a mental state
comparable to deliberation and intent”); United States v. Celestine, 510
F.2d 457, 459 (9th Cir. 1975) (“Malice aforethought . . . embraces the state
of mind with which one intentionally commits a wrongful act without legal
justification or excuse. It may be inferred from circumstances which show
‘a wanton and depraved spirit, a mind bent on evil mischief without regard
to its consequences’”); and United States v. Wilson (where the Ninth Circuit
noted the trial court “distinguished between mere recklessness and
recklessness with extreme disregard for human life”); U.S. v. Wilson, 221 F.
App’x 551, 553 (9th Cir. 2007).
Doc. 26 at 10-11.

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The Ninth Circuit has not applied the rule of Fernandez-Ruiz and its progeny to

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the crime of second degree murder. Rather, since Fernandez-Ruiz was decided in 2006,

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the Ninth Circuit has explicitly stated that second degree murder is a crime of violence.

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See, e.g., United States v. Begay, 567 F.3d 540, 552 (9th Cir. 2009), overruled on other

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grounds, 673 F.3d 1038 (9th Cir. 2011) (“Both first- and second-degree murder constitute

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crimes of violence”); United States v. J.J., 704 F.3d 1219, 1222 (9th Cir. 2013) (“In this

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case, there is no question that . . . second degree murder, if committed by an adult, would

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be a felony crime of violence.”). The opinions in United States v. Begay and United

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States v. J.J. were each filed after that in Fernandez-Ruiz, and United States v. J.J. was

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filed after the opinion in Covarrubias v. Teposte.

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Additionally, Ninth Circuit precedent upholds convictions for second-degree

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murder under 18 U.S.C. § 1111 and corresponding convictions under § 924(c)(1)(A). See

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United States v. Houser, 130 F.3d 867, 868 (9th Cir. 1997); United States v. Andrews, 75

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F.3d 552, 553 (9th Cir. 1996); United States v. Wilson, 221 Fed. App’x. at 552.

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In the R&R, Judge Fine concluded as follows:

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The Ninth Circuit case law following Fernandez-Ruiz does not specifically
discuss whether second-degree murder qualifies as a crime of violence, and
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the court has not overruled its opinions expressly stating that second-degree
murder is a crime of violence. Faced with a choice between: (1) the
Fernandez-Ruiz line of cases in which the Ninth Circuit found that
“recklessness” is an insufficient state of mind to qualify an offense as a
crime of violence, but in which the Circuit has not yet directly addressed
whether the heightened state of mind of “recklessness with extreme
disregard for human life” is likewise insufficient; and (2) the
contemporaneous direct statements in United States v. J.J. and United
States v. Begay that second-degree murder is a crime of violence, the
Magistrate Judge recommends a finding that the latter authority prevails.

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Doc. 26 at 11-12. The Court agrees.

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Ninth Circuit case law is clear that second degree murder requires a higher degree

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of culpability than the plain recklessness found insufficient in Fernandez-Ruiz. See, e.g.,

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Pineda-Doval, 614 F.3d at 1040 (“second degree murder require[s] a finding of extreme

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recklessness evincing disregard for human life, not simple recklessness.”); Lesina, 833

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F.2d at 159 (“disregard for human life becomes more callous, wanton or reckless, and

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more probative of malice aforethought, as it approaches a mental state comparable to

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deliberation and intent.”); Celestine, 510 F.2d at 459. This heightened standard differs

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from the standard found incapable of supporting a crime of violence in Fernandez-Ruiz.

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Because second degree murder requires a higher degree of recklessness than the

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Ninth Circuit found insufficient for a crime of violence in Fernandez-Ruiz, and multiple

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Ninth Circuit cases, including cases decided since Fernandez-Ruiz, have held that second

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degree murder is a crime of violence, the Court finds that second degree murder is a

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crime of violence for purposes of § 924(c) and will adopt Judge Fine’s recommendation.

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IT IS ORDERED:

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The Court adopts Judge Fine’s Report and Recommendation (Doc. 26).

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2.

Plaintiff’s Motion to Vacate, Set Aside, or Correct Sentence Under 28

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U.S.C. § 2255 (Doc. 1) is denied.

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The Court grants a Certificate of Appealability because dismissal of the
Petition may be debatable among jurists of reason.

Dated this 3rd day of July, 2017.

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