Nakai v. USA

Filing 17

ORDER: Magistrate Judge John Z. Boyle's R&R (Doc. 13 ) is accepted in part and rejected in part as explained above. The government's motion to dismiss (Doc. 6 ) is granted in part and denied in part. Ground One's claim that § 9 24(c) and (j) permit only one count per indictment is dismissed with prejudice. Ground Two is dismissed with prejudice. The motion for a stay (Doc. 9 ) is remanded for further review. Movant's request for a certificate of appealability is remanded for further review. This case is remanded to Magistrate Judge John Z. Boyle for further proceedings and a report and recommendation. Signed by Judge David G Campbell on 4/16/18. (EJA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Gregory Nakai,

No. CV-16-08310-PCT-DGC

Petitioner,

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v.

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United States of America,

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ORDER

Respondent.

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Movant Gregory Nakai filed a pro se application for permission to file a second

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motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (the

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“second motion”). Doc. 3-3 at 3-11. The Ninth Circuit granted the application and

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transferred the second motion to this Court for review. Id. at 1-2. The government filed

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a motion to dismiss, Movant responded, and the government replied. Docs. 6, 11, 12.

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Magistrate Judge John Z. Boyle issued a report and recommendation (“R&R”) that the

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second motion be dismissed.

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responded, and Movant replied. Docs. 14, 15, 16. The Court will adopt Judge Boyle’s

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recommendation in part, reject it in part, and remand for further review.

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I.

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Doc. 13.

Movant filed objections, the government

Legal Standards.
The Court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge” in a habeas case.

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§ 636(b)(1). The Court must undertake de novo review of those portions of the R&R to

28 U.S.C.

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which specific objections are made. Thomas v. Arn, 474 U.S. 140, 149 (1985); United

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States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); see also 28 U.S.C.

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§ 636(b)(1); Fed. R. Civ. P. 72(b)(3).

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II.

Background.

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A jury convicted Movant on each count in an 18-count indictment arising from a

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double murder on the Navajo Indian Reservation in August 2001. Doc. 6 at 2-4. The

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indictment charged Movant with nine substantive offenses and nine corresponding

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violations of 18 U.S.C. § 924(c) and (j). No. CR-01-01072-DGC, Doc. 280 at 1-2. To

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convict Movant on a § 924(c) or (j) count, the jury needed to find that he used a firearm

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in a predicate “crime of violence.” 18 U.S.C. § 924(c), (j). The nine separate § 924

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convictions resulted in 720 months of incarceration followed by six consecutive life

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terms. No. CR-01-01072-DGC, Doc. 280 at 2.

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Movant’s first § 2255 motion was filed in October 2006 and denied in

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August 2007. Doc. 6 at 3. Movant applied in June 2016 for permission to file a second

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motion, alleging two grounds for relief. Doc. 3-3 at 3-11. Movant first relied on Johnson

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v. United States, 135 S. Ct. 2551 (2015), to argue that eight of his § 924 convictions are

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unconstitutional (“Ground One”). Id. at 7, 10. Movant also argued that sentencing him

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under both § 924(c) and (j) violated the double jeopardy clause of the Fifth Amendment

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(“Ground Two”). Id. at 7, 11. The Ninth Circuit granted Movant’s application to file a

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second motion, finding that Ground One “makes a prima facie showing for relief under

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Johnson v. United States.” Id. at 1. When the court of appeals certifies a second motion,

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the district court has a duty to examine each claim.

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F.3d 940, 944 (9th Cir. 2000); see also 28 U.S.C. § 2244(b)(4).

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Nevius v. McDaniel, 218

The Court referred the second motion to Judge Boyle.

Doc. 5 at 2.

The

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government moved to dismiss, arguing that the second motion does not satisfy the

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requirements of § 2255(h). See Doc. 6 at 4-5. The government construed Movant’s

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application as challenging only the imposition of multiple convictions and punishments

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for § 924(c) and (j) violations. Id. Although the second motion cited Johnson, the

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government argued that it sought relief that does not find its source in Johnson. Id.

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Movant responded that his motion relies on Johnson to argue that the predicate offenses

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for his § 924 convictions are insufficient. Doc. 11 at 3-5.

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The R&R agrees with the government and recommends dismissal, finding that the

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second motion does not rely on a new rule of constitutional law. Doc. 13 at 3-5. With

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respect to Ground One, the R&R notes that Johnson did not address whether § 924(c) and

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(j) permit only one count per indictment – the primary argument made in this ground. Id.

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at 4. The R&R further notes that any argument that the predicate offenses are invalid

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under Johnson was first raised in Movant’s response brief and was therefore waived. Id.

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at 5-6. The R&R nonetheless rejects the Johnson claim on the merits because Movant’s

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response brief, at most, stated it in a cursory manner. Id. at 6-7. With respect to Ground

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Two, the R&R concludes that Movant did not rely on Johnson at all. Id. at 4-5.

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III.

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Discussion.
A.

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Ground One.
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Multiple § 924 Counts in Single Indictment.

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Ground One alleges that the government could not charge Movant with multiple

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§ 924 violations in a single indictment. Doc. 3-3 at 7, 10. The R&R concludes that this

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argument is barred because it was not raised in the first motion and is not based on “a

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new rule of constitutional law, made retroactive to cases on collateral review by the

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Supreme Court, that was previously unavailable.” 28 U.S.C. § 2244(b)(2)(A); see also

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28 U.S.C. § 2255(h); Doc. 13 at 3-4.

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Boyle’s finding on this argument. See Docs. 14, 14-1, 14-2, 14-3. The Court agrees with

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Judge Boyle’s conclusion and adopts this portion of the R&R.

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2.

Movant makes no specific objection to Judge

Johnson Claim.

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Ground One also alleges a “New Substantive Change in Law,” citing Johnson and

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Welch v. United States, 136 S. Ct. 1257 (2016). Doc. 3-3 at 7. Specifically, Movant

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states:

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I received Life for two 18 USC 924(c)(j) charges, when I should have only
received the one 924(c) charge of the 120 months. This is a sentencing
error that meets plain error, especially since my predicate offenses are not
now recognized under the new substantive change in law.

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Id. (emphasis added). The addendum to the motion offers four paragraphs of elaboration.

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Id. at 10. Three of the four paragraphs appear to argue that the government can only

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charge one § 924 violation per indictment. Id. This is not a Johnson argument. But the

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final paragraph states:

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Johnson/Welch changed the law substantively, and it is now required that a
person be charged under the proper charge, which is listed, as predicate
offenses, and [Movant’s] charges do not meet this requirement.
Id. (emphasis in original).

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While this argument is terse and not a model of clarity, the Ninth Circuit has

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directed district courts to construe pro se § 2255 motions liberally. United States v.

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Seesing, 234 F.3d 456, 463 (9th Cir. 2000) (courts must interpret pro se § 2255 motions

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liberally); see also United States v. Howard, 381 F.3d 873, 883 (9th Cir. 2004)

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(interpreting pro se § 2255 motion liberally). Doing so, the Court concludes that Movant

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did argue in his motion that some of his predicate offenses are no longer valid predicate

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offenses under Johnson. The Ninth Circuit reached the same conclusion, finding that

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Movant’s application made a prima facie Johnson argument. Doc. 3-3 at 1.

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Section 2255 permits a second motion if it “relies on a new rule of constitutional

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law, made retroactive to cases on collateral review by the Supreme Court, that was

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previously unavailable.” 28 U.S.C. § 2244(b)(2); see also 28 U.S.C. § 2255(h). Johnson

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announced that language similar to the residual clause in § 924(c)(3)(B) violates due

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process. 135 S. Ct. at 2557. The Supreme Court held in April 2016 that Johnson

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“announced a substantive rule that has retroactive effect in cases on collateral review.”

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Welch, 136 S. Ct. at 1268. Movant filed his second motion approximately two months

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later (Doc. 3-3 at 2), arguing, in effect, that some of his predicate offenses no longer

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qualify as crimes of violence after Johnson.

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requirements of 28 U.S.C. §§ 2244(b)(2) and 2255(h).

Ground One therefore meets the

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After finding that Movant’s Johnson argument was waived, the R&R, being

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thorough, addressed the argument on the merits and found it unpersuasive. While this

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was an efficient approach to resolving the case, the Court concludes that the merits

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should not have been addressed without first affording Movant an opportunity to address

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them in full.

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The government responded to the second motion by moving to dismiss, asserting

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that Johnson arguments were not raised and that the remaining arguments were clearly

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invalid. Doc. 6. This was a permissible motion. The Rules Governing Section 2255

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Cases permit limited judicial review of affirmative defenses before reaching the merits of

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a § 2255 motion. The advisory committee’s note explains that Rule 5 “leaves open the

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possibility that the government’s first response . . . is in the form of a pre-answer motion

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to dismiss the petition.”

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But the rules also suggest that merits briefing should occur if the government’s

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limited motion to dismiss is not granted in full. Rule 5(b) states that “[t]he answer must

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address the allegations in the motion.” And the Court required the government to “fully

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comply with all of the requirements of Rule 5” if the issues were “not limited to

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affirmative defenses.” Doc. 5 at 2.

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As explained above, the Court concludes that the government’s motion was

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incorrect when it argued that Movant had not raised a legitimate Johnson claim. As a

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result, although the R&R was quite right in rejecting movant’s argument that an

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indictment cannot include more than one § 924 charge, it should also have found that,

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liberally construed, the second motion raised a valid Johnson claim that should be

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addressed through merits briefing.

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opportunity to explain his position and respond to the government’s merits arguments.

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The Court accordingly concludes that this case should be remanded to permit the

Movant then would have been afforded a full

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government to respond to the merits of the Johnson claim and to permit Movant to reply,

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before the merits of the Johnson claim are resolved.

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B.

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Ground Two alleges that Movant’s sentence violates the double jeopardy clause of

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the Fifth Amendment. Doc. 3-3 at 7, 11. The R&R concludes that Ground Two is barred

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because it is not based on “a new rule of constitutional law, made retroactive to cases on

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collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C.

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§ 2244(b)(2)(A); see also 28 U.S.C. § 2255(h); Doc. 13 at 4-5. Movant’s objections

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argue the merits of Ground Two, but make no specific objection to Judge Boyle’s finding

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on the timeliness of the claim. See Doc. 14-2 at 13-15; Doc. 14-3 at 1. The Court agrees

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with Judge Boyle’s conclusion and adopts this portion of the R&R.

Ground Two.

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C.

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The R&R recommends a denial of Movant’s request for a stay until the Supreme

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Court announces its decision in Lynch v. Dimaya, 137 S. Ct. 31 (2016). Doc. 13 at 8.

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That case will address “whether the residual clause of 18 U.S.C. § 16(b), which is

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identical to the residual clause of § 924(c)(3)(B), is unconstitutional.” Id.; see also

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Dimaya v. Lynch, 803 F.3d 1110, 1120 (9th Cir. 2015), cert. granted, Lynch, 137 S.

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Ct. 31. The R&R reasons that a stay is inappropriate because Movant’s claims “do not

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implicate the residual clause of § 924(c)(3)(B).” Doc. 13 at 8. For the reasons stated

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above, the Court does not agree. On remand, Judge Boyle should consider whether the

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stay request should be denied for other reasons.

Request to Stay Proceedings.

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IT IS ORDERED:

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1.

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Magistrate Judge John Z. Boyle’s R&R (Doc. 13) is accepted in part and
rejected in part as explained above.

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The government’s motion to dismiss (Doc. 6) is granted in part and

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denied in part. Ground One’s claim that § 924(c) and (j) permit only one

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count per indictment is dismissed with prejudice.

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dismissed with prejudice.

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Ground Two is

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The motion for a stay (Doc. 9) is remanded for further review.

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Movant’s request for a certificate of appealability is remanded for further

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review.
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This case is remanded to Magistrate Judge John Z. Boyle for further
proceedings and a report and recommendation.

Dated this 16th day of April, 2018.

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