Lee v. USA

Filing 43

ORDER that the Motion Under 28 U.S.C. 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 58 in CR-05-00594-PCT-JAT) is denied and the civil action opened in connection with this Motion (CV-16-08138- PCT-JAT) is dismis sed with prejudice and the clerk of court shall enter judgment accordingly. IT IS FURTHER ORDERED that a certificate of appealability and leave to proceed in forma pauperis on appeal are denied because denial of the Motion is based on a plain procedural bar and jurists of reason would not find this Court's procedural rulings debatable.. Signed by Senior Judge James A Teilborg on 10/9/18. (GMP)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Duane Thomas Lee,
Movant-Defendant,

10
11

ORDER

v.

12

No. CV-16-08138-PCT-JAT
CR-05-594-PCT-JAT

USA,

13

Respondent-Plaintiff.

14
15

I.

Claim in this case

16

Movant has summarized the claim in this case as follows: “Mr. Lee is before the

17

Court challenging his conviction under 18 U.S.C. § 924(c) for discharging a firearm

18

during and in relation to a crime of violence under Johnson v. United States, 135 S. Ct.

19

2551 (2015), on the ground that the predicate crime in his case, second-degree murder in

20

violation of 18 U.S.C. § 1111, is not a ‘crime of violence’ under § 924(c)(3) in the wake

21

of Johnson.” (Doc. 29 at 1).

22

II.

Procedural History

23

Pending before the Court is the second Report and Recommendation (R&R)

24

issued by the Magistrate Judge recommending that the Motion to Vacate, Set Aside or

25

Correct Sentence (“Motion”) in this case be denied. After the first R&R was issued, the

26

Supreme Court decided Class v. United States, 138 S.Ct. 798 (2018). After the second

27

R&R was issued, the Ninth Circuit Court of Appeals decided United States v. Blackstone,

28

No. 17-55023, 2018 WL 4344096 (9th Cir. Sept. 12, 2018).

1

In the first R&R the Magistrate Judge recommended that this Court find that

2

Movant has waived his right to bring this Motion via his plea agreement. (Doc. 23 at 6-

3

9). Following the supplemental briefing on Class, this Court (mistakenly) believed that

4

the parties agreed that Petitioner’s waiver did not preclude his Motion in this case. (Doc.

5

31). This Court re-referred this case to the Magistrate Judge for a second R&R. In

6

preparing the second R&R, the Magistrate Judge (correctly) determined that the parties

7

were not in agreement on whether Class impacted Respondent’s waiver arguments.

8

Thus, in the second R&R, the Magistrate Judge again recommends that this Court find

9

that Movant waived his ability to bring this motion via his plea agreement,

10

notwithstanding Class. (Doc. 35 at 9-16). Movant objected to this recommendation.

11

In the second R&R, the Magistrate Judge went on, in the event this Court

12

disagreed regarding the waiver bar, to analyze Movant’s Motion. In that analysis, the

13

R&R recommended that this Court find the Motion was timely. However, following the

14

Ninth Circuit Court of Appeals decision in Blackstone, the Government argues that the

15

Motion is not timely.1 Movant suggests that he will argue that Blackstone is wrongly

16

decided on appeal, and also argues that he is subject to an exception from Blackstone’s

17

conclusion.

18

Assuming neither Movant’s waiver, nor the time bar, prevent the Court from

19

reaching the merits of the Motion, the second R&R ultimately concludes that Movant

20

should be given relief as to his conviction on Count Two. (Doc. 35 at 48). The

21

Government objects to this recommendation. (Doc. 39).

22

III.

Review of R&R

23

This Court “may accept, reject, or modify, in whole or in part, the findings or

24

recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that

25

the district judge must review the magistrate judge’s findings and recommendations de

26

novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d

27
1

28

The Government’s position throughout the pendency of the Motion has been
that it is untimely; however, the Government now argues the issue is definitively resolved
by Blackstone.
-2-

1

1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original). Both Movant and the

2

Government filed objections to the R&R. (Docs. 36 and 39). Further, at the Court’s

3

request, each filed a supplemental brief. (Docs. 41 and 42).

4

IV.

Motion

5

A.

6

As discussed above, the first issue this Court must address is whether Movant

7

waived his ability to bring this Motion via his plea agreement. The R&R concludes that

8

Movant expressly waived his ability to bring this Motion.

9

Specifically, the R&R notes that the plea agreement included the following: “The

10

defendant further waives…(3) any right to collaterally attack defendant’s conviction and

11

sentence under Title 28, United States Code, Section 2255.” (Doc. 35 at 9).

Waiver

(Doc. 35 at 9-16).

12

Movant argues that the type of § 2255 motion he is bringing is non-waivable; thus,

13

even the express waiver language of his plea agreement would not bar this Motion. (Doc.

14

36). Specifically, Movant argues: 1) a guilty plea does not implicitly waive any claim

15

that goes to the government’s ability to bring charges in the first instance; and 2) a waiver

16

cannot be enforced against a claim that a sentence or conviction is unconstitutional.

17

(Doc. 36 at 2).

18

Conversely, the Government argues that Movant’s express waiver should be

19

enforced. (Doc. 39 at 2-3). However, the Government then basically concludes that the

20

distinctions drawn in Class between Constitutional claims and statutory claims are very

21

difficult to apply in practice; thus, the Government encourages the Court to decide the

22

Motion in this case on a ground other than waiver.2 (Doc. 39 at 3). Nonetheless, the

23

Government argues that what the Supreme Court found to not be waived by Mr. Class

24

was a Constitutional challenge, and the Government argues that what Movant in this case

25

brings is a statutory challenge; thus, Movant’s claim is waivable and was in fact waived.

26

(Doc. 30 at 3).

27
2

28

Similarly, in responding the this Court’s request for supplemental briefing
regarding the impact of the Class decision, the Government encouraged this Court to
decide the Motion in this case on grounds other than waiver. (Doc. 30 at 4).
-3-

1

The first issue the Court must decide with respect to waiver is whether Class

2

controls this Court’s analysis. The second R&R finds Class to be distinguishable from

3

this case because in Class the defendant merely pleaded guilty, he did not waive any

4

rights to appeal or challenge his conviction. (Doc. 35 at 14-16). The court in Class

5

found that Mr. Class’s plea did not contain an express waiver of the right to appeal. 138

6

S.Ct. at 807-808.

7

Here, as recounted in the R&R, the plea was not silent as to waiver. The waiver

8

was express. The Court agrees with the R&R that, even post-Class, express waivers of

9

Constitutional rights are enforceable. (Doc. 35 at 14-16). In other words, this Court

10

finds that the holding of Class is limited to pleas that have no express waivers.

11

Having determined that Class did not change the state of the law, the Court must

12

determine whether Movant’s waiver barred his claim in this case even pre-Class. As

13

indicated above, the first R&R concluded that said waiver did bar the claim in this case,

14

and Movant objected to this conclusion. The second R&R reaches the same conclusion.

15

(Doc. 35 at 10-13). Movant again objects and argues that he is challenging his sentence,

16

not his conviction. Movant makes this distinction, presumably, because waivers as to

17

sentencing issues frequently are unenforceable (because they come after the plea) but

18

waivers as to conviction issues (even Constitutional issues) are enforceable because they

19

were knowable at the time of the plea. See generally (Doc. 35 at 10-13).

20

The R&R rejects Movant’s characterization that he is challenging his sentence and

21

not his conviction. (Doc. 35 at 12-13). The nuances of when a Movant is challenging a

22

conviction verses a sentence come from United States v. Bibler, 495 F.3d 621, 624 (9th

23

Cir. 2007), which stated that a guilty plea waiver would not be enforced if the sentence

24

violates the law (among other reasons not relevant here). Id. at 624. Bibler went on to

25

state “A sentence is illegal if it exceeds the permissible statutory penalty for the crime or

26

violates the Constitution.” Id. Here, Movant is arguing that his sentence violates the

27

Constitution if the statute under which he is convicted is itself unconstitutional. (Doc. 24

28

at 2).

-4-

1

The R&R reaches a persuasive conclusion that this is not a sentencing claim

2

because, if this type of Constitutional challenge not to the sentence, but to the conviction,

3

counts as a “sentencing” claim, all Constitutional challenges to convictions would not be

4

waivable. Clearly, such a result is inconsistent with a myriad of Supreme Court cases

5

which found that Constitutional challenges to convictions were waived by pleading

6

guilty.

7

waivers to be enforceable)).

8

interpretation of what is a sentencing claim is that any claim challenging the conviction is

9

a claim that the sentence is “illegal.” This Court agrees with the R&R that Movant’s

10

theory of what qualifies as a sentencing claim would ultimately make the majority of

11

waivers unenforceable.

12

enforceable, this Court will not go against the weight of this authority to find Movant did

13

not waive this claim.

14
15

(Doc. 35 at 10-13 (discussing various cases finding both implicit and express
In other words, the logical result of Movant’s broad

Given that courts have routinely held that waivers are

As a result, the Court finds Movant’s current claim to be barred by his express
waiver in his plea agreement and the Motion will be denied and dismissed on this basis.

16

B.

17

This Court addressed whether Movant waived the ability to bring this Motion as

18

an initial inquiry because such question potentially impacted Movant’s standing to be

19

before this Court.

20

limitations also bars Movant’s Motion. The Court will now consider this alternative basis

21

for dismissal.

Statute of Limitations

Alternatively, the Government has argued that the statute of

22

The R&R concluded that the Motion in this case is not barred by the statute of

23

limitations because of the exception in 28 U.S.C. § 2255(f)(3).3 (Doc. 35 at 16-23).

24

However, as noted above, after the R&R issued, the Ninth Circuit Court of Appeals

25

decided United States v. Blackstone, No. 17-55023, 2018 WL 4344096 (9th Cir. Sept. 12,

26
27
28

3

Neither party objected to the R&R’s conclusion that the Motion was filed more
than one year after Movant’s conviction became final and that under the general one-year
statute of limitations the Motion is untimely. (Doc. 35 at 16-17). Thus, the only issue
was whether Movant qualified for an exception to that general rule.
-5-

1

2018). As further noted above, the Government argues in its supplemental brief that

2

Blackstone is directly on point, and resultantly makes Movant’s Motion untimely. (Doc.

3

42). The Court agrees with the Government that Blackstone is directly on point and bars

4

Movant’s motion.4

5

Movant attempts to distinguish Blackstone in two ways.

First, he argues

6

Blackstone is wrongly decided in light of existing Supreme Court precedent. (Doc. 41 at

7

3). This Court cannot rule that binding Ninth Circuit precedent is wrongly decided;

8

therefore, this distinction fails.

9

Second, Movant argues he is actually innocent, which would allow his Motion to

10

be timely. (Doc. 41 at 3). However, Movant has never argued factual innocence in this

11

case. (Indeed, he has argued that he is bringing a sentencing claim; although the Court

12

has rejected this argument.) At best, Movant has argued legal innocence by making a

13

constitutional challenge to the statute of conviction. For the reasons stated in Bousley v.

14

United States, 523 U.S. 614, 623 (1998) (requiring factual innocence not legal

15

insufficiency); Muth v. Fondren, 676 F.3d 815, 819 (9th Cir. 2012) (same); and Marrero

16

v. Ives, 682 F.3d 1190, 1193 (9th Cir. 2012) (holding that a purely legal claim is not

17

equivalent to factual innocence and therefore is not actual innocence for purpose of the

18

exception to the statute of limitation), this legal theory does not meet the actual innocence

19

exception to the statute of limitation.

20

Thus, because Blackstone is controlling, and directly on point, the Court

21

alternatively will dismiss this Motion because it is barred by the statute of limitation.

22

V.

Conclusion

23

Because the Court has concluded that the Motion in this case is barred for two

24

procedural reasons, the Court will not reach the remainder of the R&R recommendations

25

regarding the merits of this case. Based on the foregoing,

26
4

27
28

Specifically, Blackstone held that: “The Supreme Court has not recognized that
§ 924(c)’s residual clause is void for vagueness in violation of the Fifth Amendment.”
United States v. Blackstone, No. 17-55023, 2018 WL 4344096, at *7 (9th Cir. Sept. 12,
2018). As a result, Blackstone’s motion did not qualify for the exception to the statute of
limitations in 28 U.S.C. § 2255(f)(3). Id. at *6-7.
-6-

1

IT IS ORDERED that the R&R (Doc. 35) is modified as indicated above and

2

accepted. The Motion is denied and dismissed, with prejudice, and the Clerk of the Court

3

shall enter judgment accordingly.

4

IT IS FURTHER ORDERED that a certificate of appealability and leave to

5

proceed in forma pauperis on appeal are denied because denial of the Motion is based on

6

a plain procedural bar and jurists of reason would not find this Court’s procedural rulings

7

debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

8

Dated this 9th day of October, 2018.

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-7-