Lee v. USA

Filing 4

AMENDED ORDER GRANTING DEFENDANT LARRY LEE'S MOTION FOR RELEASE ON BAIL, DOC. 208; AND GRANTING GOVERNMENT'S MOTION TO STAY 28 U.S.C. § 2255 PETITION re 3 - Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 3/15/2016. "Defendant's Motion for Release on Bail, Doc. No. 208, is GRANTED. Meanwhile, a decision on the merits of Defendant's § 2255 petition is STAYED , pending the Supreme Court's resolution of Welch and Mathis." (CR 12-00133 JMS-02; CV 16-00070 JMS-BMK) (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

UNITED STATES OF AMERICA,

)
)
Plaintiff,
)
)
vs.
)
)
LARRY LEE,
(02),
)
)
Defendant.
)
)
_______________________________ )

Crim. No. 12-00133 JMS (02)
(Civ. No. 16-00070 JMS-BMK)
AMENDED ORDER GRANTING
DEFENDANT LARRY LEE’S
MOTION FOR RELEASE ON BAIL,
DOC. NO. 208; AND GRANTING
GOVERNMENT’S MOTION TO
STAY 28 U.S.C. § 2255 PETITION

AMENDED ORDER GRANTING DEFENDANT LARRY LEE’S MOTION
FOR RELEASE ON BAIL, DOC. NO. 208; AND GRANTING
GOVERNMENT’S MOTION TO STAY 28 U.S.C. § 2255 PETITION
I. INTRODUCTION
Defendant Larry Lee (“Defendant”) has filed a Motion for Release on
Bail, Doc. No. 208 (“Motion for Bail”), pending the resolution of his claim under
28 U.S.C. § 2255 that his sentence is unconstitutional under Johnson v. United
States, 135 S. Ct. 2551 (2015), and Descamps v. United States, 133 S. Ct. 2276
(2013). As announced at the March 7 and 11, 2016 hearings, the Motion for Bail
is GRANTED. Furthermore, given Defendant’s agreement at the March 7, 2016
hearing, the government’s oral Motion to Stay the § 2255 Petition is GRANTED,
pending decisions by the Supreme Court in Welch v. United States, No. 15-6418

(U.S.) (cert. granted Jan. 8, 2016) and Mathis v. United States, No. 15-6092 (U.S.)
(cert. granted Jan. 19, 2016).
II. BACKGROUND1
Defendant was convicted on November 16, 2012, for violations of 18
U.S.C. § 922(j) (possession of a stolen firearm); 18 U.S.C. § 641 (receiving stolen
government property); and 18 U.S.C. §§ 922(g)(1) & 924(e) (felon in possession
of a firearm subsequent to three convictions for violent felonies). Doc. Nos. 153,
174. Defendant’s conviction was affirmed on direct appeal on November 10,
2014. Doc. No. 200.
Under the Armed Career Criminal Act (“ACCA”), if a defendant is
convicted of a firearms offense and has three or more prior convictions for “a
violent felony or a serious drug offense, or both,” the defendant is subject to a
mandatory minimum fifteen-year sentence. 18 U.S.C. § 924(e)(1). A “violent
felony” is defined for these purposes as follows:
(B) the term “violent felony” means any crime
punishable by imprisonment for a term exceeding one
year, or any act of juvenile delinquency involving the use
or carrying of a firearm, knife, or destructive device that
would be punishable by imprisonment for such term if
committed by an adult, that --

1

The court sets forth only the background necessary to put these rulings into proper

context.
2

(i) has as an element the use, attempted use, or
threatened use of physical force against the person
of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury
to another[.]
18 U.S.C. § 924(e)(2). The first clause in § 924(e)(2)(B)(ii) (“is burglary, arson,
or extortion, involves use of explosives”) is often called the “enumerated offense
clause.” The other § 924(e)(2)(B)(ii) clause (“or otherwise involves conduct that
presents a serious potential risk of physical injury to another”) is referred to as the
“residual clause.”
Among Defendant’s prior state-court convictions are multiple
convictions for first-degree burglary under Hawaii Revised Statutes (“HRS”)
§ 708-810. Doc. No. 180. Given those prior burglary convictions, the court
sentenced Defendant on March 8, 2013 to a mandatory fifteen-year prison term
under the ACCA. Doc. No. 174, Judgment at 3. When Defendant was sentenced,
it did not matter for sentencing purposes whether Defendant’s prior burglary
convictions were “violent felonies” under the enumerated offense clause or the
residual clause. The court and the parties generally understood or assumed that
first degree burglary under HRS § 708-810 fit within one or the other clause when

3

applying the general approach derived from Taylor v. United States, 495 U.S. 575
(1990), and Shepard v. United States, 544 U.S. 13 (2005). It was unnecessary for
the parties to raise the issue, and the court made no specific finding as to which
clause (or both) applied. On June 26, 2015, however, the Supreme Court issued
Johnson, which invalidated the ACCA’s residual clause as unconstitutionally
vague. 135 S. Ct. at 2557-58.
Given Johnson, and applying the “modified categorical approach” as
explained by the Supreme Court in 2013 in Descamps (which elaborated on the
Taylor/Shepard methodology) and subsequent Ninth Circuit caselaw2 to determine
whether a prior crime qualifies under the ACCA, Defendant filed his § 2255
petition seeking re-sentencing. Doc. No. 205. The petition argues that absent the
residual clause, a first-degree burglary conviction under HRS § 708-810 does not
qualify as a burglary under the enumerated offense clause and is thus not a
“violent felony” under the ACCA. See Doc. No. 207. If so, Defendant is not an
“armed career criminal,” and is not subject to the fifteen-year mandatory
minimum. The argument turns in part on whether Johnson applies retroactively to
ACCA cases on collateral review -- that is, whether Johnson is a “substantive rule

2

See, e.g., Almanza-Arenas v. Lynch, ___ F.3d. ___, 2016 WL 766753 (9th Cir. Feb. 29,
2016) (en banc) (as amended); and Rendon v. Holder, 764 F.3d 1077 (9th Cir. 2014).
4

of constitutional law” such that courts are required to give retroactive effect to that
rule in a properly-brought ACCA case on collateral review. See, e.g., Montgomery
v. Louisiana, 136 S. Ct. 718, 729 (2016) (discussing Teague v. Lane, 489 U.S. 288
(1989)).
The Supreme Court is considering this exact retroactivity issue in
Welch, which is scheduled for oral argument on March 30, 2016. And in Welch,
the United States has taken the position that Johnson does indeed apply to ACCA
cases on collateral review. See Brief for the United States, Welch v. United
States, 2016 WL 537542, at *17 (U.S. Feb. 9, 2016) (No. 15-6418) (“Johnson
applies to cases on collateral review because it is a substantive decision.”).3
Further, in Mathis, the Supreme Court is also considering the methodology used to
determine whether a prior conviction qualifies under the ACCA. Mathis is
scheduled for oral argument on April 26, 2016. The Supreme Court’s decisions in
Welch and Mathis will likely control the disposition of Defendant’s § 2255
petition. Defendant now seeks bail pending the resolution of his § 2255 petition.
Doc. No. 208.

3

Although the government has not conceded retroactivity in this case, the government
has done so -- indeed, has argued affirmatively for such a result -- to the Supreme Court in
Welch.
5

III. DISCUSSION
A.

The court has power to grant bail pending its decision in a § 2255
proceeding in extremely limited circumstances.
The government first argues, based on an absence of binding Ninth

Circuit precedent, that this court lacks power to grant bail before deciding a
§ 2255 petition. And it is undisputed that “[t]he Bail Reform Act does not apply
to federal prisoners seeking postconviction relief.” United States v. Mett, 41 F.3d
1281, 1282 (9th Cir. 1994). “Nevertheless, there is abundant authority that federal
district judges in habeas corpus and section 2255 proceedings have inherent power
to admit applicants to bail pending the decision of their cases, but a power to be
exercised very sparingly.” Cherek v. United States, 767 F.2d 335, 337 (7th Cir.
1985) (citing cases from the Second, Fifth, Sixth, and Tenth Circuits); Mapp v.
Reno, 241 F.3d 221, 226 (2d Cir. 2001) (reaffirming that “the federal courts have
inherent authority to admit to bail individuals properly within their jurisdiction”);
United States v. Kelly, 790 F.2d 130, 139 (D.C. Cir. 1986) (same).
The court recognizes that the Ninth Circuit has not specifically
decided the question. See In re Roe, 257 F.3d 1077, 1080 (9th Cir. 2001)
(vacating a district court’s bail order for lack of exceptional circumstances,
assuming, but specifically not deciding, that a district court otherwise has

6

authority to order the release of a state prisoner pending resolution of a petition
under 28 U.S.C. § 2254). The court agrees, however, that “all of the other circuit
courts that have decided the issue have concluded that the district court indeed
possesses such authority.” Hall v. S.F. Superior Court, 2010 WL 890044, at *2
(N.D. Cal. Mar. 8, 2010) (citing cases). And this inherent power is especially
apparent where, as here, the court is reviewing its own criminal Judgment under
§ 2255 -- not a petition under § 2254 as to a state prisoner, which entails larger
considerations of comity and judicial federalism.4
This power is “necessary to make the habeas remedy effective,”
Mapp, 241 F.3d at 226, consistent with a statutory mandate to decide habeas
petitions “as law and justice require.” 28 U.S.C. § 2243. “[H]abeas corpus is, at
its core, an equitable remedy,” Schlup v. Delo, 513 U.S. 298, 319 (1995), and is to
“be administered with . . . initiative and flexibility.” Harris v. Nelson, 394 U.S.
286, 291 (1969). “[H]abeas corpus is not a static, narrow, formalistic remedy, but
one which must retain the ability to cut through barriers of form and procedural
mazes.” Brown v. Vasquez, 952 F.2d 1164, 1166 (9th Cir. 1992) (as amended)

4

This Order is limited to where a defendant has filed a § 2255 petition but the court has
not yet ruled. The court expresses no opinion as to whether this inherent power extends to a
pending § 2254 petition reviewing a state court conviction or sentence.
7

(quoting Hensley v. Municipal Ct., 411 U.S. 345, 349-50 (1973) (internal
quotation marks omitted)).
And so the court agrees (and believes that the Ninth Circuit would
likewise agree), consistent with the reasoning of all circuits to consider the
question, that “[i]n a § 2255 proceeding, ‘the court’s jurisdiction to order release
as a final disposition of the action includes an inherent power to grant relief
pendente lite, to grant bail or release, pending determination of the merits.’”
Kelly, 790 F.2d at 139 (quoting Baker v. Sard, 420 F.2d 1342, 1343 (D.C. Cir.
1969)).5

5

The court is not relying on Federal Rule of Appellate Procedure 23 (concerning release
of a prisoner in a habeas corpus proceeding), which applies where the district court has already
ruled on a habeas petition and such a decision is on appellate review. Nevertheless, Rule 23 does
contain the power for a district court to grant bail while a decision is “under review.” Both Rule
23(b) (regarding “Detention or Release Pending Review of Decision Not to Release”) and 23(c)
(regarding “Release Pending Review of Decision Ordering Release”) refer to “the court or judge
rendering the decision [i.e., the district court], or the court of appeals, or the Supreme Court”
(emphasis added) as having the power to release a prisoner “on personal recognizance, with or
without surety” while a habeas decision is under appellate review. Indeed, Rule 23 was enacted,
at least in part, to preserve a retained district court power regarding bail, even while a decision is
on review. See Jago v. U.S. Dist. Ct., N. Dist. of Ohio, 570 F.2d 618, 622-23, 625-26 (6th Cir.
1978) (analyzing history and origin of Rule 23, and explaining how Rule 23 preserves district
court’s bail power). Bail is generally a matter for district courts in the first instance. Cf. O’Brien
v. O’Laughlin, 557 U.S. 1301 (2009).
Moreover, under Rule 23(b)(3), a district court could deny a habeas petition, but then
grant bail while the denial is under review. If a district court has that power (where the petition
has been found to lack merit), it makes little sense that it does not otherwise have the inherent
power to grant bail before rendering a decision on the habeas petition (at least when the petition
does appear to have merit).
8

But the court recognizes and appreciates that the power to grant bail
pending review “is a limited one, to be exercised in special cases only.” Mapp,
241 F.3d at 226. The power is to be exercised “only in unusual cases, or when
extraordinary or exceptional circumstances exist.” Id. (quoting Ostrer v. United
States, 584 F.2d 594, 596 (2d Cir. 1978). It is “a power to be exercised very
sparingly.” Cherek, 767 F.2d at 337.
B.

The court applies two primary factors.
In making this bail determination in habeas proceedings, courts

consider two primary factors -- exceptional/extraordinary circumstances and a
high probability of success on the merits. See, e.g., Mett, 41 F.3d at 1282 (citing
Land v. Deeds, 878 F.2d 318, 318-19 (9th Cir. 1989)).6 Mett and Land list these
factors (with little or no accompanying discussion), in the disjunctive (“or”). See
id. (recognizing that under Fed. R. App. P. 23, “this court has reserved bail for
‘extraordinary cases involving special circumstances or a high probability of
success’”) (quoting Land, 878 F.3d at 318) (emphasis added). But other cases,
addressing the issue in much more detail, apply a conjunctive test -- that is, both
factors are necessary for granting bail. See, e.g., Landano v. Rafferty, 970 F.2d

6

Defendant also agrees that traditional bail factors such as the potential that a defendant
will flee or pose a danger to the community must also be considered. Doc. No. 206, Def.’s Mot.
at 4. Such factors were considered and addressed in court but will not be outlined in this Order.
9

1230, 1239 (3d Cir. 1992) (reasoning that “bail pending post-conviction habeas
corpus review [is] available ‘only when the petitioner has raised substantial
constitutional claims upon which he has a high probability of success, and also
when extraordinary or exceptional circumstances exist which make the grant of
bail necessary to make the habeas remedy effective”) (emphasis added) (quoting
Calley v. Callaway, 496 F.2d 701, 702 (5th Cir. 1974); Martin v. Solem, 801 F.2d
324, 329 (8th Cir. 1986) (same); Hall, 2010 WL 890044, at *3 (requiring
petitioner to meet both prongs). And requiring both prongs appears to be obvious
-- as the government argues, “it makes no sense that exceptional circumstances
alone . . . would be sufficient if the petitioner was unlikely to succeed on the
merits.” Doc. No. 212, Gov’t Mem. at 14.
In any event, because Defendant meets both factors, the court need
not decide whether a strong showing of just one factor might suffice. Defendant
has demonstrated both a high probability of success on the merits and the
existence of extraordinary circumstances (and the court emphasizes that this is
indeed a truly extraordinary set of circumstances).
Initially, there is a high probability of success on Defendant’s claim
that Johnson applies retroactively to his § 2255 petition. See, e.g., In re Watkins,
810 F.3d 375, 377, 384 (6th Cir. 2015) (concluding, when authorizing the filing of
10

a second or successive § 2255 petition under § 2255(h)(2), that the petitioner had
made a prima facie showing that “the Supreme Court has made Johnson’s rule
categorically retroactive to cases on collateral review”); Price v. United States,
795 F.3d 731, 734-35 (7th Cir. 2015) (finding that the petitioner has made a prima
facie showing under § 2255(h) of success on a Johnson claim because “[t]here is
no escaping the logical conclusion that the [Supreme] Court itself has made
Johnson categorically retroactive to cases on collateral review”); Montgomery,
136 S. Ct. at 729 (“[T]he Constitution requires substantive rules to have
retroactive effect regardless of when a conviction became final”). It seems clear
that, by barring an enhanced ACCA sentence that was based on the residual
clause, Johnson is substantive because it “prohibit[s] a certain category of
punishment for a class of defendants because of their status.” Montgomery, 136 S.
Ct. at 729 (citation and internal quotation marks omitted).7
And applying Descamps as interpreted by existing Ninth Circuit
precedent (e.g., Almanza-Arenas, 2016 WL 766753, at *5; Rendon, 764 F.3d at
1083), it appears that Defendant was sentenced unconstitutionally. The court
sentenced Defendant in 2013 under the ACCA with no specific finding as to

7

To be clear, the court is not deciding that Johnson is indeed retroactive -- the Supreme
Court in Welch has granted certiorari to decide that question. It appears, however, that Defendant
has a “high probability” of success on that question.
11

whether his Hawaii burglary convictions qualified as violent felonies under the
enumerated offense clause or the residual clause. That is, the court and parties
assumed that those prior convictions fit under one or the other clause, or both
(when applying the methodology derived from Taylor/Shepard). And if the court
were to re-sentence Defendant now, under the methodology required in Descamps,
Defendant has a high probability of succeeding on his argument that his HRS
§ 708-810 burglary convictions do not fit within the ACCA’s enumerated offense
clause.8
Second, if Johnson is given retroactive effect, Defendant will likely
have already served his full sentence upon a re-sentencing. Defendant’s advisory
non-ACCA guideline range would be 37 to 46 months (offense level 20, criminal
history category II) under the sentencing guidelines. And, including good-time
credits, Defendant has already spent approximately 56 months in custody. Doc.
No. 212, Gov’t Mem. at 3. It is thus likely that, if re-sentenced without an ACCA
enhancement, Defendant would receive a sentence of time-served. This is
certainly a factor when considering whether to grant bail. See, e.g., Landano, 970

8

Thus, the government’s argument that Descamps (as opposed to Johnson) does not
apply retroactively does not control. If the court were to re-sentence Defendant today applying
Johnson, the court would apply current law regarding the categorical/modified categorical
methodology (i.e., Descamps, as interpreted by Ninth Circuit precedent). The court would not
apply Johnson based on the methodology that applied in 2013 before Descamps.
12

F.2d at 1239 (“[I]f bail were denied and the habeas petition were eventually
granted, the defendant would already have served the sentence.”).
What makes this situation extraordinary is the unique combination of
several factors -- the likelihood that Defendant at the present time has already
served a non-ACCA sentence, coupled with the unusual posture where the
Supreme Court is now considering in both Welch and Mathis the issues likely to
be dispositive in this § 2255 petition.9 Although it is impossible to know exactly
how the Supreme Court will resolve Welch and Mathis, if this court waits until
final resolution of these issues by the Supreme Court without granting bail,
Defendant will very likely have continued to serve an excessive sentence in the
meantime. Combined with the high likelihood of success, a grant of bail pending

9

In the March 11, 2016 version of this Order, the court compared In re Johnson, 2016
WL 762095, at *4 (11th Cir. Feb. 26, 2016) (holding a § 2255 petition in abeyance, pending
Welch, reasoning that “[w]e think this case is extraordinary because of the convergence of four
unusual circumstances,” including that “[t]he only remaining question is whether [Johnson]
should be retroactively applied,” and where “the government has argued that the Johnson rule is
retroactive, even though doing so favors petitioners’ positions”), as a similar extraordinary
circumstance. See Doc. No. 216 at 13.
Nearly simultaneously with issuance of the March 11, 2016 Order, however, the Eleventh
Circuit in In re Johnson vacated the February 26, 2016 order, deciding to rehear the matter en
banc. See In re Johnson, 2016 WL 919483 (11th Cir. Mar. 10, 2016) (ordering that the case be
reheard en banc, and vacating the panel’s February 26, 2016 and January 20, 2016 orders). This
does not change this court’s conclusion regarding bail. Indeed, it further demonstrates the
extraordinary circumstances now before the court -- it indicates the extent to which courts are
struggling with issues related to Johnson v. United States while Welch and Mathis are pending
before the Supreme Court.
13

the Supreme Court’s decisions (with adequate bail conditions) is an appropriate
equitable remedy in this extraordinary situation.
Further demonstrating exceptional circumstances is that an alternative
to granting bail would be to grant the § 2255 petition based on current law and
re-sentence Defendant despite the Supreme Court having granted certiorari in
Welch and Mathis. Doing so, however, would ignore the possibility that the
Supreme Court could certainly decide Welch and Mathis together in a manner that
would result in the denial of Defendant’s § 2255 petition. Allowing the Supreme
Court to decide these issues with certainty, rather than having this court predict the
result, accords a proper respect for the Supreme Court in this unique posture.
Indeed -- recognizing that the grant of bail in these unique
circumstances is a kind of compromise -- the government at the March 7, 2016
hearing moved orally for a stay of a decision on the merits of the § 2255 petition
(pending decisions in Welch and Mathis) and Defendant agreed to such a stay. As
the court indicated at the hearing, the government’s request for a stay of a ruling
on the merits is GRANTED.
///
///
///
14

IV. CONCLUSION
Defendant’s Motion for Release on Bail, Doc. No. 208, is
GRANTED. Meanwhile, a decision on the merits of Defendant’s § 2255 petition
is STAYED, pending the Supreme Court’s resolution of Welch and Mathis.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 15, 2016.

/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge

United States v. Lee, Crim. No. 12-00133 JMS (02), Amended Order Granting Defendant’s
Motion for Release on Bail, Doc. No. 208; and Granting Government’s Motion to Stay § 2255
Petition

15