Deel v. USA
Filing
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ORDER - Respondent United States of America's Objections to the Report and Recommendation (Doc. 46 ) are OVERRULED. ORDERED that the Report and Recommendation of Magistrate Judge James Metcalf (Doc. 43 ) is ADOPTED. ORDERED that Petitioner 039;s Revised Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 8 ) is GRANTED. FURTHER ORDERED directing the Clerk to terminate this action and enter judgment accordingly. Signed by Chief Judge G Murray Snow on 10/8/20. (EJA)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Gentry Dee Deel,
Petitioner,
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No. CV-16-08136-PCT-GMS
CR-06-01147-PCT-GMS
ORDER
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v.
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United States of America,
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Respondent.
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Pending before the Court is the Ninth Circuit’s reversal and remand of this Court’s
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order rejecting the Report and Recommendation (“R&R”) issued by Magistrate Judge
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James Metcalf. (Doc. 57.) Magistrate Judge Metcalf recommended that the Court grant
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Petitioner Gentry Dee Deel’s Motion to Vacate, Set Aside, or Correct Sentence pursuant
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to 28 U.S.C. § 2255 (“Motion to Vacate”). (Doc. 43.) For the reasons discussed below,
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the Court grants Petitioner’s Motion to Vacate and adopts the R&R.
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BACKGROUND
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In October 2007, a jury convicted Petitioner of the following four offenses:
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(i) Assault by Striking, Beating, or Wounding in violation of 18 U.S.C. § 1153 and
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113(a)(4); (ii) Assault Resulting in Serious Bodily Injury in violation of 18 U.S.C. § 1153
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and 113(a)(6); and (iii) Discharging a Firearm During a Crime of Violence in violation of
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18 U.S.C. § 924(c)(1)(A). On April 17, 2008, the Court sentenced Petitioner. Petitioner
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appealed his convictions and sentences. On August 28, 2009, the Ninth Circuit affirmed
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Petitioner’s convictions and sentences.
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On June 25, 2016, Petitioner filed the Motion to Vacate in this case, alleging his
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conviction in violation of 18 U.S.C. § 924(c)(1)(A) is invalid because the operative
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definition of crime of violence under § 924(c)(3)(B) (“Residual Clause”) is void for
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vagueness and the definition under § 924(c)(3)(A) (“Elements Clause”) is not met. In his
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R&R, the Magistrate Judge recommended that the Court grant Petitioner’s Motion to
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Vacate. Respondent subsequently filed an objection to the R&R. (Doc. 46.) On February
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12, 2019, the Court rejected the R&R and denied Petitioner’s Motion to Vacate on
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untimeliness grounds. (Doc. 53.)
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On April 8, 2019, Petitioner filed a notice of appeal. While on appeal, the United
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States Supreme Court issued the decision in United States v. Davis, 139 S. Ct. 2319 (2019),
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which struck down the Residual Clause. Based on this decision, Petitioner and Respondent
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jointly moved for remand. Joint Mot. for Remand, United States v. Gentry Dee Deel,
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No. 19-15665 (9th Cir. May 18, 2020). On June 25, 2020, the Ninth Circuit vacated the
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Court’s February 2019 order dismissing Petitioner’s Motion to Vacate on untimeliness
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grounds and remanded this case to the Court for further consideration of the Motion to
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Vacate. (Doc. 57.)
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DISCUSSION
I.
Standard of Review
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A “district judge may refer dispositive pretrial motions, and petitions for writ of
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habeas corpus, to a magistrate, who shall conduct appropriate proceedings and recommend
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dispositions.”
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§ 636(b)(1)(B); Estate of Connors v. O’Connor, 6 F.3d 656, 658 (9th Cir. 1993). Any party
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“may serve and file written objections” to a report and recommendation by a magistrate
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judge. 28 U.S.C. § 636(b)(1). “A judge of the court shall make a de novo determination
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of those portions of the report or specified findings or recommendations to which objection
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is made.” Id. District courts, however, are not required to conduct “any review at all . . .
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of any issue that is not the subject of an objection.” Arn., 474 U.S. at 149. A district judge
Thomas v. Arn., 474 U.S. 140, 141 (1985); see also 28 U.S.C.
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“may accept, reject, or modify, in whole or in part, the findings or recommendations made
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by the magistrate.” 28 U.S.C. § 636(b)(1).
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II.
Analysis
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In its objections, Respondent argued the Court should decline to adopt the R&R
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because Petitioner’s Motion to Vacate was untimely and Petitioner’s claim is procedurally
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defaulted. As Respondent waived the timeliness bar in the joint motion to remand, the
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Court only considers Respondent’s arguments as to procedural default. Joint Mot. For
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Remand at 4.
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“Where a defendant has procedurally defaulted a claim by failing to raise it on direct
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review, the claim may be raised in habeas only if the defendant can first demonstrate either
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cause and actual prejudice, or that he is actually innocent.” Bousley v. U.S., 523 U.S. 614,
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622 (1998) (internal quotation marks and citations omitted). Respondent disputes whether
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cause and prejudice have been established.
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A. Cause
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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) “overtur[ns] a longstanding and
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widespread practice to which th[e] Court has not spoken, but which a near-unanimous body
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of lower court authority has expressly approved”; or (3) “disapprove[s] a practice th[e]
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Court arguably has sanctioned in prior cases.” Id. at 17.
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Respondent argues the Magistrate Judge misinterpreted the third Reed prong. (Doc.
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46 at 14.) Respondent contends that the “theoretical question of whether residual clauses
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are unconstitutionally vague” does not fit within the Supreme Court’s interpretation of
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what a “practice” is. Id. In U.S. v. Johnson, where the Reed factors originated, the Supreme
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Court stated that a new constitutional rule arises where there is “such an abrupt and
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fundamental shift in doctrine as to constitute an entirely new rule which in effect replaced
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an older one.” 457 U.S. 537, 551 (1982) (quoting Hanover Shoe, Inc. v. United Shoe Mach.
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Corp., 392 U.S. 481, 498 (1968)). One instance where there is a break in the law, the
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Supreme Court explained, is when the Court “disapproves a practice this Court arguably
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has sanctioned in prior cases.” Id. at 551. The Supreme Court then cited to three cases as
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examples. Id. See Gosa v. Mayden, 413 U.S. 665, 675 (1973) (plurality opinion)
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(prosecution of members of the Armed Services in military court for nonservice-connected
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crimes), Adams v. Illinois, 405 U.S. 278, 283–84 (1972) (provision of counsel at a
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preliminary hearing), Johnson v. New Jersey, 384 U.S. 719, 734 (1966) (use of un-
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Mirandized statements in trials commencing after the Miranda standard was announced).
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Other than providing these examples, the Supreme Court did not expressly define or limit
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what “practice” means in Johnson. Nor did the Supreme Court define what “practice”
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means in Reed. 468 U.S.
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The Magistrate Judge did not misinterpret the third Reed prong. The question of
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whether residual clauses are unconstitutional fits neatly in the overall rule statement in
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Johnson that a new constitutional rule arises where there is an abrupt shift in doctrine.
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Furthermore, the Court does not find, and Respondent does not provide, case law that
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expressly limits “practice” to Respondent’s narrow interpretation. Instead, the Court has
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only found cases that find that the question of whether residual clauses are
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unconstitutionally vague falls within the third Reed prong. See, e.g., Cross v. United States,
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892 F.3d 288, 296 (7th Cir. 2018), United States v. Douglas, 406 F. Supp. 3d 541, 547
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(E.D. Va. 2019), United States v. Jimenez-Segura, 1:16-cv-805, 2020 WL 4514584, at *6-7
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(E.D. Va. Aug. 4, 2020). Accordingly, Respondent’s objection is overruled.
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B. Prejudice
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Respondent argues Petitioner cannot show actual prejudice because the Residual
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Clause is not unconstitutionally vague and assault resulting in serious bodily injury is a
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crime of violence under the Elements Clause.
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In Davis, the Supreme Court held that the Residual Clause is unconstitutionally
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vague. 139 S. Ct. at 2336. Although the Ninth Circuit has yet to address the issue, other
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circuits have concluded that Davis announced a substantive rule of constitutional law
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retroactively applicable on collateral review. See United States v. Reece, 938 F.3d 630,
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635 (5th Cir. 2019), United States v. Bowen, 936 F.3d 1091, 1097 (10th Cir. 2019), In re
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Hammoud, 931 F.3d 1032, 1031 (11th Cir. 2019). The Court will follow the holdings of
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these circuits. Therefore, the Court finds that the Residual Clause is unconstitutionally
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vague.
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In regard to the Elements Clause, Respondent bases its rejection of the Magistrate
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Judge’s ruling on the grounds that Voisine v. United States, 136 S. Ct. 2272 (2016)
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implicitly overruled the holding in Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir.
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2006) (en banc). In Fernandez-Ruiz, the Ninth Circuit held that “crimes of recklessness
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cannot be crimes of violence.” 466 F.3d at 1130. The Ninth Circuit recently confirmed
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that Voisine did not overrule Fernandez-Ruiz. In United States v. Begay, the Ninth Circuit
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stated that Voisine is not irreconcilable with circuit precedent and held that a crime that can
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be committed recklessly cannot constitute a crime of violence under the Elements Clause.
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934 F.3d 1033,1038–39. Therefore, Respondent’s objection is overruled.
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CONCLUSION
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Having reviewed the record as it relates to Respondent’s objections de novo, the
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Court accepts the Report and Recommendation and grants the Petitioner’s Motion to
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Vacate. Accordingly,
IT IS ORDERED that Respondent United States of America’s Objections to the
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Report and Recommendation (Doc. 46) are OVERRULED.
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IT IS FURTHER ORDERED that the Report and Recommendation of Magistrate
Judge James Metcalf (Doc. 43) is ADOPTED.
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IT IS FURTHER ORDERED that Petitioner’s Revised Motion under 28 U.S.C.
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§ 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 8)
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is GRANTED.
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///
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///
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///
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IT IS FURTHER ORDERED directing the Clerk to terminate this action and enter
judgment accordingly.
Dated this 8th day of October, 2020.
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