Beach v. United States of America

Filing 11

ORDER by Judge Richard A Jones granting Petitioner's 1 Motion to Vacate/Set Aside/Correct Sentence (2255). The Court VACATES and SETS ASIDE the judgment in United States v. Shad M. Beach, Case No. CR-12-56-RAJ-1, Dkt. No. 25 (W.D. Wash. 2013). The Court will resentence Beach. (PM)

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HONORABLE RICHARD A. JONES 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 SHAD M. BEACH, 9 10 11 Petitioner, Case No. 16-855 RAJ v. ORDER UNITED STATES OF AMERICA, 12 Respondent. 13 14 15 I. INTRODUCTION This matter comes before the Court on Petitioner Shad M. Beach’s Motion Under 16 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence By a Person in Federal 17 Custody. Dkt. # 1. For the reasons that follow, the Court GRANTS Beach’s motion. 18 19 II. BACKGROUND On November 19, 2012, Petitioner Shad M. Beach pleaded guilty to one count of 20 being a felon in possession of a firearm. At sentencing, the Court determined that Beach 21 qualifies as a career offender under § 2K2.1(a)(2) of the United States Sentencing 22 Guidelines (“U.S.S.G.”) because he had previously been convicted of a “crime of 23 violence,” a term defined by reference to U.S.S.G. § 4B1.2(a). His previous convictions 24 that the Court considered crimes of violence under the enhancement were for “attempting 25 to elude.” PSR ¶¶ 12, 33, 41. Based on this determination, the Court set Beach’s total 26 offense level at 25, resulting in a guideline range of 110 to 137 months of incarceration. 27 Had he not been sentenced as a career offender, his guideline range would have been 41 28 ORDER – 1 1 to 51 months. Dkt. 6 at 2. After applying the sentencing factors under 18 U.S.C. 2 § 3553(a), the Court sentenced Beach to a term of 72 months. Id. 3 On June 26, 2015, the Supreme Court decided Johnson v. United States, 135 S. Ct. 4 2551 (2015). The Court held that the residual clause of the Armed Career Criminal Act 5 (“ACCA”) violates the Constitution’s guarantee of due process because it is 6 unconstitutionally vague. Id. at 2557. The residual clause defines the term “violent 7 felony” to include any crime that “otherwise involves conduct that presents a serious 8 potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). Section 9 2K2.1(a)(2), by reference to § 4B1.2, uses similar language to define the term “crime of 10 11 violence.” U.S.S.G. § 2K2.1, cmt. n.1. On April 18, 2016, the Supreme Court decided Welch v. United States, 136 S. Ct. 12 1257 (2016). In Welch, the Court held that its decision in Johnson invalidating the 13 ACCA’s residual clause “announced a substantive rule that has retroactive effect in cases 14 on collateral review.” Id. at 1268. 15 On June 7, 2016, Beach filed a petition under 28 U.S.C. § 2255 challenging the 16 Court’s determination that he qualifies as a career offender under § 2K2.1(a)(2). Dkt. 1. 17 Beach contends that, based on the Supreme Court’s holding in Johnson, his prior 18 convictions do not qualify as crimes of violence, and thus, that it was improper to 19 sentence him as a career offender. Id. The Government opposes the motion. Dkt. # 9. 20 III. DISCUSSION 21 a. Johnson Applies Retroactively 22 The Government contends that the Supreme Court’s decision in Johnson does not 23 apply retroactively to a defendant seeking to challenge a USSG calculation on collateral 24 review. The Court recently addressed this issue and found that Johnson does apply 25 retroactively to such cases. See Haffner v. United States, No. C16-448-RAJ, 2016 WL 26 6897812, at *3-4 (W.D. Wash. Nov. 23, 2016); see also Gibson v. United States, No. 27 C15-5737 BHS, 2016 WL 3349350, at *2 (W.D. Wash. June 15, 2016); Pressley v. 28 ORDER – 2 1 United States, No. C16-510RSL, 2016 WL 4440672, at *2 (W.D. Wash. Aug. 11, 2016). 2 The Court declines to deviate from its previous holding. Johnson applies retroactively to 3 Beach’s claim. 4 b. Beach’s Claims Are Not Procedurally Defaulted 5 The Government argues that Beach’s claims are procedurally defaulted because he 6 did not argue on direct appeal that his previous convictions are not crimes of violence. 7 Beach does not dispute that he failed to raise this issue on direct appeal; instead, he 8 argues that his failure to do so is excused by cause and prejudice. 9 “A prisoner may obtain federal review of a defaulted claim by showing cause for 10 the default and prejudice from a violation of federal law.” Trevino v. Thaler, 133 S. Ct. 11 1911, 1917 (2013) (quoting Martinez v. Ryan, 132 S. Ct. 1309, 1316 (2012)). A 12 petitioner may establish cause by showing that the constitutional claim at issue “is so 13 novel that its legal basis [was] not reasonably available to counsel” at the time of direct 14 appeal. Reed v. Ross, 468 U.S. 1, 16 (1984). 15 The Court, having rejected an identical argument by the Government in a separate 16 matter, finds that Beach’s Johnson argument was not reasonably available to him on 17 direct appeal. See Haffner v. United States, No. C16-448-RAJ, 2016 WL 6897812, at *4 18 (W.D. Wash. Nov. 23, 2016) (“Petitioner has demonstrated that the Johnson decision 19 specifically overruled existing precedent . . . , overturned a longstanding and widespread 20 practice to which a near-unanimous body of lower court authority had adhered and 21 disapproved a practice which the Supreme Court itself had previously sanctioned . . . . 22 Under Reed, this means that Petitioner has established that his claim was not ‘reasonably 23 available to him at the time he could have filed a direct appeal.”). 24 c. Beach’s Claims Are Timely 25 The Government contends that Beach’s motion is untimely. But Beach filed the 26 instant motion on June 7, 2016, within one year of the Court’s decision in Johnson, which 27 was published on June 26, 2015. Thus, Beach filed his motion within the statute of 28 ORDER – 3 1 limitations set forth under 28 U.S.C. § 2255(f)(3) (“A 1-year period of limitation shall 2 apply to a motion under this section. The limitation period shall run from the latest of . . . 3 the date on which the right asserted was initially recognized by the Supreme Court, if that 4 right has been newly recognized by the Supreme Court and made retroactively applicable 5 to cases on collateral review.”). 6 7 IV. CONCLUSION For the reasons stated above, the Court GRANTS Beach’s motion. The Court 8 finds that Beach was erroneously sentenced as a career offender in violation of the law. 9 The Court VACATES and SETS ASIDE the judgment in United States v. Shad M. 10 Beach, Case No. CR-12-56-RAJ-1, Dkt. No. 25 (W.D. Wash. 2013). The Court will 11 resentence Beach, permit him to submit objections to his Presentence Report pursuant to 12 Federal Rule of Criminal Procedure 32(i)(1)(D), and allow both sides to argue for an 13 appropriate and lawful sentence. 14 15 DATED this 24th day of January, 2017. 16 17 A 18 19 The Honorable Richard A. Jones United States District Judge 20 21 22 23 24 25 26 27 28 ORDER – 4

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