Andrews v. USA

Filing 6

ORDER - IT IS THEREFORE ORDERED that Andrews' motion to vacate, correct or set aside sentence pursuant to 28 U.S.C. § 2255 (ECF Nos. 214 & 217 ) is DENIED. Andrews is further DENIED a certificate of appealability. The Clerk of Court shall enter final judgment accordingly. Signed by Judge Howard D. McKibben on 7/3/2024. (Copies have been distributed pursuant to the NEF - DLS)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 10 11 12 13 UNITED STATES OF AMERICA, v. Case No. 3:93-cr-00075-HDM Case No. 3:17-cv-00158-HDM Plaintiff, ORDER PAULA ANDREWS, Defendant. 14 15 Before the court is the defendant Paula Andrews’ (“Andrews”) 16 amended motion to vacate pursuant to 28 U.S.C. § 2255. (ECF Nos. 17 214 & 217). The government has responded (ECF Nos. 215 & 218), and 18 Andrews has replied (ECF No. 234). 19 I. Factual Background 20 On August 22, 1993, Andrews opened fire on a car, killing 21 Steven Williams and injuring Matt John and James Thomas. During 22 the same altercation, Andrews’ brother, co-defendant Ivan Andrews 23 (“Ivan Andrews”), shot and killed Benjamin Lowery. Andrews and her 24 brother were arrested and charged with two counts of first-degree 25 murder and aiding and abetting in violation of 18 U.S.C. §§ 1111, 26 1151 and 1153, two counts of attempted murder and aiding and 27 abetting, and four counts of use of a firearm during and in 28 relation to a crime of violence in violation of 18 U.S.C. § 924(c). 1 1 At trial, a jury found Andrews guilty of one count of second- 2 degree murder for the murder of Williams, one count of aiding and 3 abetting in second-degree murder for the murder of Lowery, two 4 counts of attempted voluntary manslaughter, and all four firearms 5 charges. 1 See United States v. Andrews, 75 F.3d 552, 554-55 (9th 6 Cir. 1996). Ivan was found guilty of one count of second-degree 7 murder for the murder of Lowery, one count of aiding and abetting 8 in second degree murder for the murder of Williams, two counts of 9 aiding and abetting attempted voluntary manslaughter, and all four 10 § 924(c) charges. On appeal, the Ninth Circuit affirmed Paula 11 Andrews’ convictions. However, after concluding that there was “no 12 evidence that Ivan knowingly and intentionally aided, counselled, 13 commanded, induced, or procured Paula to shoot the people in the 14 car,” id. at 555, the Court of Appeals reversed Ivan’s three aiding 15 and abetting convictions and the § 924(c) convictions that relied 16 thereon. Andrews now moves to vacate her four § 924(c) convictions. 17 II. Legal Standards 18 Pursuant to 28 U.S.C. § 2255, a federal inmate may move to 19 vacate, set aside, or correct her sentence if: (1) the sentence 20 was imposed in violation of the Constitution or laws of the United 21 States; (2) the court was without jurisdiction to impose the 22 sentence; (3) the sentence was in excess of the maximum authorized 23 by law; or (4) the sentence is otherwise subject to collateral 24 attack. Id. § 2255(a). 2 25 26 27 28 The law of the case precludes Andrews’ contention that any of her convictions - save for the murder of Lowery - was under an aiding and abetting theory. 1 The government does not argue that Andrews’ motion is untimely or that cases on which she relies are not retroactive. 2 2 1 Following a number of recent Supreme Court decisions, Andrews 2 argues that her § 924(c) convictions are no longer valid. Section 3 924(c) criminalizes the use of a firearm during and in relation to 4 a crime of violence. The statute defines “crime of violence” as 5 6 7 8 9 10 an offense that is a felony and — (A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. 18 U.S.C. § 924(c)(3). In 2019, the referred Supreme to Court as the held that – – otherwise 12 unconstitutionally vague. United States v. Davis, 588 U.S. 445 13 (2019). Thus, to qualify as a crime of violence now, a crime must 14 meet the definition set forth in subsection (A), referred to as 15 the elements clause. In determining whether a crime meets the 16 definition set forth in the elements clause, courts apply the 17 categorical approach of Taylor v. United States, 495 U.S. 575, 18 598–600 (1990). Under this approach, “‘the facts of a given case 19 are irrelevant,’ and [the court focuses] instead on ‘whether the 20 elements of the statute of conviction meet the federal standard.’” 21 United States v. Draper, 84 F.4th 797, 802 (9th Cir. 2023). “The 22 question . . . is thus whether a conviction . . . necessarily ‘has 23 as an element the use, attempted use, or threatened use of physical 24 force against the person or property of another.’” United States 25 v. Buck, 23 F.4th 919, 924 (9th Cir. 2022) “If any—even the least 26 culpable—of the acts criminalized do not entail that kind of force, 27 the statute of conviction does not categorically match the federal 3 clause (B) 11 28 residual subsection was 1 standard.” See id. (citing Borden v. United States, 593 U.S. 420 2 (2021)) 3 In 2021, the Supreme Court in Borden “held that a statute 4 defining ‘crime of violence’ like § 924(c) does not apply to 5 offenses that punish ordinary recklessness.” Draper, 84 F.4th at 6 802 (citing Borden, 593 U.S. 420). While Borden did not decide 7 whether a crime committed with a mens rea of extreme recklessness 8 might nevertheless qualify as a crime of a violence, the Ninth 9 Circuit in 2022 concluded that it does, when it found second- 10 degree murder to be categorically a crime of violence under 11 § 924(c). United States v. Begay, 33 F.4th 1081, 1093–95 (9th Cir. 12 2022) (en banc), cert. denied, – U.S. –, 143 S. Ct. 340 (2022). 13 III. Analysis 14 Andrews argues that second-degree murder, aiding and abetting 15 second-degree murder, and attempted voluntary manslaughter do not 16 categorically qualify as crimes of violence under § 924(c), and so 17 her § 924(c) convictions -- Counts Five, Six, Seven and Eight -- 18 must therefore be vacated. 19 Andrews’ arguments with respect to her convictions predicated 20 on second-degree murder and aiding and abetting second-degree 21 murder are directly foreclosed by binding Ninth Circuit law. As 22 noted above, the Ninth Circuit has held that a “conviction for 23 second-degree murder pursuant to § 1111(a) constitutes a crime of 24 violence” for purposes of § 924(c). Begay, 33 F.4th at 1093. 25 Further, the Ninth Circuit has held that “aiding and abetting a 26 crime of violence . . . is also a crime of violence.” United States 27 v. Eckford, 77 F.4th 1228, 1236 (9th Cir.), cert. denied, 144 S. 28 Ct. 521 (2023) (quoting Young v. United States, 22 F.4th 1115, 4 1 1123 (9th Cir. 2022)). Thus, as Andrews’ Count Five and Count Six 2 convictions, based on aiding and abetting second-degree murder and 3 second-degree murder, are validly predicated on qualifying crimes 4 of violence, her motion to vacate Counts Five and Six must be 5 denied. 6 The court concludes that Andrews’ arguments regarding her 7 attempted voluntary manslaughter convictions should also be 8 denied. Voluntary manslaughter in violation of 18 U.S.C. § 1112(a) 9 – the lesser included offense of which Andrews was convicted – is 10 “the unlawful killing of a human being without malice . . . [u]pon 11 a sudden quarrel or heat of passion.” The Ninth Circuit has held 12 that this is a crime of violence for purposes of § 924(c). See 13 United States v. Draper, 84 F.4th 797, 800, 803-06 (9th Cir. 2023). 14 The Ninth Circuit has also held, in Dorsey v. United States, that 15 attempted killing is a crime of violence. 76 F.4th 1277, 1282-84 16 (9th Cir. 2023). While Dorsey involved a different statute, its 17 rationale is also applicable here. 18 Attempt to kill requires showing that the defendant did 19 something that was a substantial step toward killing another and 20 that the defendant acted with the requisite intent. United States 21 v. Snell, 627 F.2d 186, 187 (9th Cir. 1980); see also Dorsey, 76 22 F.4th at 1283-84. As noted in Dorsey, the substantial step toward 23 killing need not itself be violent. “Even if the defendant took 24 only a slight, nonviolent act with the intent to cause another’s 25 death, that act would pose a threat of violent force sufficient to 26 satisfy the definition of a crime of violence.” Id. at 1283 27 (internal punctuation omitted) (citing United States v. Studhorse, 28 883 F.3d 1198, 1206 (9th Cir. 2018)). 5 1 In her reply, Andrews argues that following United States v. 2 Taylor, 596 U.S. 845 (2022), an attempt to commit a crime of 3 violence is not necessarily a crime of violence itself. She also 4 argues that the jury in this case was not instructed on attempted 5 voluntary manslaughter and was not required to find a substantial 6 step toward killing that involved the use of force. 7 Contrary to Andrews’ assertions, Taylor has no bearing on 8 this case. In Taylor, the Supreme Court held that an attempt to 9 commit Hobbs Act robbery is not a crime of violence because it can 10 be committed through an attempt to threaten use of force, which is 11 overbroad of the elements clause in § 924(c). But attempted killing 12 cannot be committed by an attempt to threaten use of force; 13 instead, it requires an attempt to use force. See Alvarado-Linares 14 v. United States, 44 F.4th 1334, 1346-47 (11th Cir. 2022) (cited 15 with approval in Dorsey, 76 F.4th at 1284) (“[T]he completed crime 16 of murder always requires the use of physical force ‘because it is 17 impossible to cause death without applying force that is capable 18 of causing pain or physical injury.’ . . . . ‘[W]here a crime of 19 violence requires the use of physical force ... the corresponding 20 attempt to commit that crime necessarily involves the attempted 21 use of force.’”); see also Dorsey, 76 F.4th at 1283-84 (“We join 22 our sister circuits in concluding that Taylor does not require us 23 to reconsider our precedent holding that attempted killing is a 24 crime of violence.”). 25 And Andrews’ arguments regarding the jury instructions are 26 likewise not persuasive. The instructions, considered as a whole, 27 properly instructed the jury on the elements of attempted voluntary 28 manslaughter. Jury Instruction No. 21 instructed the jury on 6 1 voluntary manslaughter as a lesser-included offense of the charged 2 crime, first-degree murder. (ECF No. 72 at 30). Jury Instructions 3 13 and 14 instructed the jury on attempted murder, which would 4 necessarily apply to any lesser-included offenses, and required 5 finding both a substantial step toward committing the crime and 6 that Andrews acted at least recklessly with extreme disregard for 7 human life. (ECF No. 72 at 19-20). These instructions together 8 provided the necessary legal framework for evaluating whether 9 Andrews was guilty of attempted voluntary manslaughter. Finally, 10 as noted above, the court in Dorsey made clear that the substantial 11 step toward killing need not itself be violent for the attempt to 12 qualify as a crime of violence. 13 Accordingly, the court concludes that under the relevant case 14 law, federal attempted voluntary manslaughter is categorically a 15 crime of violence. Andrews’ motion to vacate her convictions under 16 Counts Seven and Eight will be denied. 17 IV. Certificate of Appealability 18 In order to proceed with an appeal, Andrews must receive a 19 certificate of appealability. 28 U.S.C. § 2253(c)(1); Fed. R. App. 20 P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950-951 21 (9th Cir. 2006); see also United States v. Mikels, 236 F.3d 550, 22 551-52 23 substantial showing of the denial of a constitutional right” to 24 warrant a certificate of appealability. Allen, 435 F.3d at 951; 28 25 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 26 (2000). “The petitioner must demonstrate that reasonable jurists 27 would find the district court’s assessment of the constitutional 28 claims debatable or wrong.” Allen, 435 F.3d at 951 (quoting Slack, (9th Cir. 2001). Generally, 7 a defendant must make “a 1 529 U.S. at 484). In order to meet this threshold inquiry, Andrews 2 has the burden of demonstrating that the issues are debatable among 3 jurists 4 differently; 5 encouragement to proceed further. Id. of reason; or that that the a court could resolve the issues questions are adequate to deserve 6 The court has considered the issues raised by Andrews, with 7 respect to whether they satisfy the standard for issuance of a 8 certificate of appealability, and determines that none meet that 9 standard. Accordingly, Andrews will be denied a certificate of 10 appealability. 11 V. Conclusion 12 In accordance with the foregoing, IT IS THEREFORE ORDERED 13 that Andrews’ motion to vacate, correct or set aside sentence 14 pursuant to 28 U.S.C. § 2255 (ECF Nos. 214 & 217) is DENIED. 15 Andrews is further DENIED a certificate of appealability. 16 The Clerk of Court shall enter final judgment accordingly. 17 IT IS SO ORDERED. 18 DATED: This 3rd day of July, 2024. 19 20 21 UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28 8

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