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)

HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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SHAD M. BEACH,

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Petitioner,
Case No. 16-855 RAJ
v.
ORDER
UNITED STATES OF AMERICA,

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Respondent.

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I. INTRODUCTION

This matter comes before the Court on Petitioner Shad M. Beach’s Motion Under

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28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence By a Person in Federal

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Custody. Dkt. # 1. For the reasons that follow, the Court GRANTS Beach’s motion.

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II. BACKGROUND

On November 19, 2012, Petitioner Shad M. Beach pleaded guilty to one count of

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being a felon in possession of a firearm. At sentencing, the Court determined that Beach

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qualifies as a career offender under § 2K2.1(a)(2) of the United States Sentencing

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Guidelines (“U.S.S.G.”) because he had previously been convicted of a “crime of

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violence,” a term defined by reference to U.S.S.G. § 4B1.2(a). His previous convictions

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that the Court considered crimes of violence under the enhancement were for “attempting

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to elude.” PSR ¶¶ 12, 33, 41. Based on this determination, the Court set Beach’s total

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offense level at 25, resulting in a guideline range of 110 to 137 months of incarceration.

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Had he not been sentenced as a career offender, his guideline range would have been 41

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ORDER – 1

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to 51 months. Dkt. 6 at 2. After applying the sentencing factors under 18 U.S.C.

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§ 3553(a), the Court sentenced Beach to a term of 72 months. Id.

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On June 26, 2015, the Supreme Court decided Johnson v. United States, 135 S. Ct.

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2551 (2015). The Court held that the residual clause of the Armed Career Criminal Act

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(“ACCA”) violates the Constitution’s guarantee of due process because it is

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unconstitutionally vague. Id. at 2557. The residual clause defines the term “violent

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felony” to include any crime that “otherwise involves conduct that presents a serious

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potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). Section

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2K2.1(a)(2), by reference to § 4B1.2, uses similar language to define the term “crime of

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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.

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1257 (2016). In Welch, the Court held that its decision in Johnson invalidating the

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ACCA’s residual clause “announced a substantive rule that has retroactive effect in cases

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on collateral review.” Id. at 1268.

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On June 7, 2016, Beach filed a petition under 28 U.S.C. § 2255 challenging the

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Court’s determination that he qualifies as a career offender under § 2K2.1(a)(2). Dkt. 1.

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Beach contends that, based on the Supreme Court’s holding in Johnson, his prior

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convictions do not qualify as crimes of violence, and thus, that it was improper to

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sentence him as a career offender. Id. The Government opposes the motion. Dkt. # 9.

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III. DISCUSSION

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a. Johnson Applies Retroactively

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The Government contends that the Supreme Court’s decision in Johnson does not

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apply retroactively to a defendant seeking to challenge a USSG calculation on collateral

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review. The Court recently addressed this issue and found that Johnson does apply

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retroactively to such cases. See Haffner v. United States, No. C16-448-RAJ, 2016 WL

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6897812, at *3-4 (W.D. Wash. Nov. 23, 2016); see also Gibson v. United States, No.

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C15-5737 BHS, 2016 WL 3349350, at *2 (W.D. Wash. June 15, 2016); Pressley v.

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ORDER – 2

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United States, No. C16-510RSL, 2016 WL 4440672, at *2 (W.D. Wash. Aug. 11, 2016).

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The Court declines to deviate from its previous holding. Johnson applies retroactively to

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Beach’s claim.

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b. Beach’s Claims Are Not Procedurally Defaulted

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The Government argues that Beach’s claims are procedurally defaulted because he

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did not argue on direct appeal that his previous convictions are not crimes of violence.

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Beach does not dispute that he failed to raise this issue on direct appeal; instead, he

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argues that his failure to do so is excused by cause and prejudice.

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“A prisoner may obtain federal review of a defaulted claim by showing cause for

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the default and prejudice from a violation of federal law.” Trevino v. Thaler, 133 S. Ct.

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1911, 1917 (2013) (quoting Martinez v. Ryan, 132 S. Ct. 1309, 1316 (2012)). A

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petitioner may establish cause by showing that the constitutional claim at issue “is so

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novel that its legal basis [was] not reasonably available to counsel” at the time of direct

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appeal. Reed v. Ross, 468 U.S. 1, 16 (1984).

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The Court, having rejected an identical argument by the Government in a separate

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matter, finds that Beach’s Johnson argument was not reasonably available to him on

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direct appeal. See Haffner v. United States, No. C16-448-RAJ, 2016 WL 6897812, at *4

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(W.D. Wash. Nov. 23, 2016) (“Petitioner has demonstrated that the Johnson decision

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specifically overruled existing precedent . . . , overturned a longstanding and widespread

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practice to which a near-unanimous body of lower court authority had adhered and

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disapproved a practice which the Supreme Court itself had previously sanctioned . . . .

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Under Reed, this means that Petitioner has established that his claim was not ‘reasonably

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available to him at the time he could have filed a direct appeal.”).

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c. Beach’s Claims Are Timely

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The Government contends that Beach’s motion is untimely. But Beach filed the

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instant motion on June 7, 2016, within one year of the Court’s decision in Johnson, which

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was published on June 26, 2015. Thus, Beach filed his motion within the statute of

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ORDER – 3

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limitations set forth under 28 U.S.C. § 2255(f)(3) (“A 1-year period of limitation shall

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apply to a motion under this section. The limitation period shall run from the latest of . . .

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the date on which the right asserted was initially recognized by the Supreme Court, if that

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right has been newly recognized by the Supreme Court and made retroactively applicable

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to cases on collateral review.”).

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IV. CONCLUSION

For the reasons stated above, the Court GRANTS Beach’s motion. The Court

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finds that Beach was erroneously sentenced as a career offender in violation of the law.

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The Court VACATES and SETS ASIDE the judgment in United States v. Shad M.

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Beach, Case No. CR-12-56-RAJ-1, Dkt. No. 25 (W.D. Wash. 2013). The Court will

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resentence Beach, permit him to submit objections to his Presentence Report pursuant to

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Federal Rule of Criminal Procedure 32(i)(1)(D), and allow both sides to argue for an

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appropriate and lawful sentence.

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DATED this 24th day of January, 2017.

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A

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The Honorable Richard A. Jones
United States District Judge

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ORDER – 4