United States District Court, D. Alaska
ORDER RE DEFENDANT'S MOTION TO VACATE OR SET
ASIDE SENTENCE
Sharon
L. Gleason UNITED STATES DISTRICT JUDGE
Before
the Court at Docket 113 is Defendant Mikeylee Muna's
First Amended Motion to Vacate or Set Aside Sentence. After
the Court denied the Government's motion to stay,
[1] the
Government filed its opposition to the motion to vacate at
Docket 117. Mr. Muna replied at Docket 123. Oral argument was
not requested and was not necessary to the Court's
determination of the motion.
On
February 11, 2014, Mr. Muna was sentenced to 75 months of
imprisonment following his guilty plea to two counts of Felon
in Possession.[2] The Court calculated a total offense level
of 23 and a criminal history category of VI, which generated
a Guideline range of 92 to 115 months. In the parties'
plea agreement, the United States agreed to recommend a
sentence at the low end of the Guideline range, with which
the Court agreed. By agreement of the parties, the Court
further reduced the sentence by 17 months for time sentenced
by the state court for related conduct.[3]
Mr.
Muna's total base offense level had been enhanced, in
part, because of a finding that Mr. Muna “committed []
part of the instant offense subsequent to sustaining one
felony conviction of [] a crime of violence, ” pursuant
to Sentencing Guidelines § 2K2.1(a)(4).[4] The prior
conviction at issue was Mr. Muna's 2012 conviction for
assault in the third degree under Alaska Statute 11.41.220.
In the parties' plea agreement, they agreed that Mr.
Muna's 2012 conviction qualified as a crime of violence
under § 2K2.1(2). Based on that agreement, at sentencing
the Court did not determine whether the conviction came
within the force or residual clause of the crime of violence
definition provided by § 4B1.2(a)(1).[5] Mr. Muna argues
that the residual clause applies because “[AS §
11.41.220(a)(1)(A)] does not require the ‘use of
force' [as the force clause requires] . . . and because
the offense requires only a reckless mens rea [as
the residual clause permits].”[6] In its response, the
Government does not address this issue. Therefore, the Court
will assume that Mr. Muna's Guideline range depended on
the validity of the residual clause as provided by §
4B1.2(a)(1).
In the
current motion, Mr. Muna moves the Court to vacate or set
aside his sentence. He asserts that, properly calculated, his
total base offense level would be 17, generating a Guideline
range of 51 to 63 months, less 17 months for the state
sentence.[7]He argues that this reduced Guideline range
is warranted because his 2012 conviction cannot serve as a
crime of violence predicate under the residual clause of
§ 4B1.2(a)(1) of the Guidelines following Johnson v.
United States.[8]
In
Johnson, the Supreme Court held that the identically
worded residual clause contained in the Armed Career Criminal
Act (ACCA) was unconstitutional under the void-for-vagueness
doctrine.[9] Then in Welch, the Supreme Court
determined that Johnson announced a new substantive
rule of constitutional law because “Johnson
changed the substantive reach of the [ACCA], altering
‘the range of conduct or the class of persons that the
[Act] punishes.'”[10] Accordingly, the Court held
that Johnson would apply retroactively to ACCA cases
on collateral review. Mr. Muna now argues that
Johnson's reasoning extends to the Guidelines
and creates a substantive rule of constitutional law that has
retroactive effect and can be applied to his collateral
challenge.
The
Government agrees that the residual clause of the Guidelines
is unconstitutionally vague, but argues that as applied to
the Guidelines, Johnson announced a non-watershed
rule of procedure, and accordingly, it does not apply
retroactively to cases, like Mr. Muna's, that are on
collateral review.[11] The Government also argues that even if
Johnson's reasoning applies retroactively to
Guideline cases on collateral review, “Mr. Muna's
claim is procedurally defaulted because he did not [timely]
argue that the residual clause of the Guidelines'
‘crime of violence' provision was
unconstitutionally vague.”[12]
The
Court will first consider whether Mr. Muna's claim is
procedurally barred, and will then address whether
Johnson's reasoning applies retroactively to
Guideline cases on collateral review.
DISCUSSION
I.
Legal Standard
A
prisoner in custody pursuant to a sentence imposed by a
federal court, who claims the right to be released on the
ground that the sentence was imposed in violated of the
Constitution or laws of the United States may move the
sentencing court to vacate, set aside or correct the
sentence.[13] A court may grant relief if it finds
that the petitioner's sentence violates the Constitution
or laws of the United States.
II.
Waiver
The
Government asserts that the collateral attack waiver in Mr.
Muna's plea agreement bars the current
motion.[14] But a collateral-attack waiver does not
apply “if the sentence violates the
law.”[15] Accordingly, if the Court finds that Mr.
Muna's sentence violates the law, the waiver does not
preclude Mr. Muna from collaterally attacking his sentence.
III.
Procedural Default
The
Government also argues that “[Mr.] Muna's claim is
procedurally barred. . . [because] [a]t sentencing, [Mr.]
Muna did not object to the calculation of his [G]uideline
range . . . [n]or did [Mr.] Muna raise this claim on direct
appeal.”[16] With limited exceptions, “claims
not raised on direct appeal may not be raised on collateral
review unless the petitioner shows cause and
prejudice.”[17] Cause may be shown by demonstrating that
“the legal basis for a claim was not reasonably
available to counsel” at the time of the direct
appeal.[18] As for prejudice, a petitioner must show
that the alleged error “worked to his actual and
substantial disadvantage.”[19]
The
Government does not contest that Mr. Muna sustained
“actual prejudice.” Moreover, the Supreme Court
has held that a sentence imposed pursuant to an incorrect
Guideline range is typically sufficient to show a reasonable
probability that the defendant sustained actual
prejudice.[20] Because the Government concedes that
Johnson's reasoning extends to the Guidelines
and because Mr. Muna's sentence was predicated on an
incorrect Guidelines range, the Court finds that prejudice
has been established in Mr. Muna's case.[21]
As for
cause, that Mr. Muna did not challenge the constitutionality
of the Guidelines' residual clause at sentencing or on
direct appeal is not dispositive. The default is excusable if
the legal basis of the constitutional challenge was not
reasonably available at the time.[22] A claim would not be
“reasonably available to counsel” if it is based
on a Supreme Court “decision that explicitly
overrule[d] one of [its] precedents.”[23]Mr. Muna's
default is thus excusable as Johnson
“explicitly overruled” the holdings in Skyes
v. United States and James v. United
States.[24] Accordingly, the Court finds that Mr.
Muna's § 2255 motion is not procedurally barred.
IV.
Retroactivity
A
§ 2255 motion is timely if filed within one year of
“the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral
review.”[25] Here, Johnson was decided on
June 26, 2015 and Mr. Muna filed his motion on April 18,
2016, [26] rendering his motion timely only if
Johnson's rationale applies retroactively to the
Guidelines.
Under
Teague v. Lane, “new constitutional rules of
criminal procedure will not be applicable to those cases
which have become final before the new rules are
announced.”[27] But there are “two categories of
rules that are not subject to [the] general retroactivity
bar.”[28] “First, courts must give
retroactive effect to new substantive rules of constitutional
law. Substantive rules include rules forbidding criminal
punishment of certain primary conduct, as well as rules
prohibiting a certain category of punishment for a class of
defendants because of their status or
offense.”[29] “Second, courts must give
retroactive effect to new watershed rules of criminal
procedure implicating the fundamental fairness and accuracy
of the criminal proceeding.”[30] This determination
depends on “whether the new rule itself has a
procedural function or a substantive function-that is,
whether it alters only the procedures used to obtain the
conviction, or alters instead the range of conduct or class
of persons that the law punishes.”[31]
The
Government argues that “[w]hile Johnson's
rule is ‘substantive' as applied to ACCA cases
since it ‘changed the substantive reach of the [ACCA],
' . . . its rule takes on a different character when
applied to [the Guidelines].”[32] The Government observes
that a rule invalidating the Guidelines'
crime-of-violence residual clause would not disturb the
statutory boundaries for sentencing. Rather, the Government
asserts that the Guidelines' role in the sentencing
process is a procedural step in imposing the sentence. The
Government cites Peugh v. United States for support
of this argument. In Peugh, the Supreme Court held
that the Ex Post Facto Clause is violated when a defendant is
sentenced under Guidelines promulgated after he committed his
crime. In that context, ...