United States District Court, D. Alaska
ORDER ON MOTION FOR RECONSIDERATION (DKT.
227)
TIMOTHY M. BURGESS, UNITED STATES DISTRICT JUDGE
I.
INTRODUCTION
The
matter comes before the Court on Defendant Barbara
Strain’s Motion for Reconsideration.[1] Strain requests
that the Court reconsider its Order[2] denying her Motion to
Vacate, Set Aside, or Correct her sentence under 28 U.S.C.
§ 2255 (the “Motion to
Vacate”).[3]Pursuant to L.Civ.R. 7.3(h), the Court did
not request the United States file a response. Strain did not
request oral argument, and the Court finds it would not be
helpful. For the reasons stated below, Strain’s Motion
for Reconsideration is GRANTED and, on
reconsideration, Strain’s Motion to Vacate is
DENIED.
II.
BACKGROUND
The
Court assumes the parties are familiar with the relevant
background of this case and hereby reincorporates the
background facts as detailed in the Initial Report and
Recommendation at docket 273. On May 17, 2019 the Magistrate
Judge submitted the Initial Report and Recommendation, which
recommended the Court deny Strain’s Motion to
Vacate.[4] The Magistrate Judge reasoned that
Strain’s motion was time-barred under § 2255
because, despite Strain’s arguments, the Supreme Court
had not established that the residual clause in 18 U.S.C.
§ 924(c)(3)(B) was unconstitutionally void for
vagueness.[5] The Court adopted and accepted the
recommendation of the Magistrate Judge in full and denied
Strain’s Motion to Vacate.[6]
On June
24, 2019, Strain filed a Motion for Reconsideration of her
Motion to Vacate pursuant to Fed.R.Civ.P.
60(b)(6).[7] She argues that the Supreme Court decision
Davis v. United States[8]-announced earlier that day-held
the residual clause under 18 U.S.C. § 924(c)(3)(B) was
unconstitutionally void for vagueness.[9] Therefore, Strain
argues, her motion is now timely, and the Court is not
precluded from ruling on her claims. The matter is now ripe
for resolution.
III.
LEGAL STANDARD
A.
Rule 60 Motion to Reconsider
A
motion to reconsider a final appealable order is
appropriately brought under either Fed.R.Civ.P. 59(e) or
60(b).[10] Under Rule 60(b) courts may relieve a
party from a final judgment, order, or proceeding for the
following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for
a new trial under Rule 59(b); (3) fraud . . .,
misrepresentation, or misconduct by an opposing party; (4)
the judgment is void; (5) the judgment has been satisfied,
released, or discharged; it is based on an earlier judgment
that has been reversed or vacated; or applying it
prospectively is no longer equitable; or (6) any other reason
that justifies relief.[11]
Ninth
Circuit law counsels that reconsideration is “an
extraordinary remedy, to be used sparingly and in the
interests of finality and conservation of judicial
resources.”[12] The Court may reconsider an order only
“where: ‘(1) the decision is clearly erroneous
and its enforcement would work a manifest injustice, (2)
intervening controlling authority makes reconsideration
appropriate, or (3) substantially different evidence was
adduced.’”[13]
B.
Section 2255 Motion to Vacate, Set Aside, or Correct.
18
U.S.C. § 2255 provides that a prisoner has a right to be
released where their sentence “was imposed in violation
of the Constitution or laws of the United States, or that the
court was without jurisdiction to impose such sentence, or
that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack . . .
.” The defendant generally has one year from the date
of a final judgment to file a motion to vacate under §
2255.[14] However, when a defendant moves to
vacate his sentence on the basis of a newly recognized
constitutional right, § 2255’s statute of
limitations begins on “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.”[15]
IV.
ANALYSIS
Strain
requests that the Court reconsider its ruling on her Motion
to Vacate in light of the Supreme Court’s recent
decision in United States v. Davis.[16] For the
reasons discussed below, Strain’s Motion for
Reconsideration is GRANTED and, on
reconsideration, Strain’s Motion to Vacate, Set Aside,
or Correct is DENIED.
A.
Strain is Entitled to Reconsideration of Her Motion to Vacate
in Light of Recent Changes in the Law.
The
Court initially denied Strain’s motion to vacate
because she had not established that 18 U.S.C. §
924(c)’s residual clause was unconstitutionally void
for vagueness under then-existing Supreme Court
precedent.[17] However, in the weeks after the Court
denied Strain’s motion, the majority in Davis
held that the residual clause, under 18 U.S.C. §
924(c)(3)(B) was unconstitutionally void for
vagueness.[18] Given this intervening authority, the
Court finds that reconsideration of Strain’s motion to
vacate is appropriate under §2255(f)(3).
Accordingly,
Strain’s Motion for Reconsideration is
GRANTED. B. Strain is Not Entitled to
Habeas Relief The Court now reconsiders the merits of
Strain’s Motion to Vacate. Strain claims that she was
wrongfully convicted under 18 U.S.C. §
924(c).[19] At trial, Strain was convicted of two
counts of bank robbery, in violation of 18 U.S.C.
§§ 2113(a) & (d); three counts of Using or
Carrying a Firearm in Relation to a Crime of Violence, in
violation of 18 U.S.C. § 924(c); one count of
Interference with Commerce by Robbery (i.e. Hobbs Act
robbery), in violation of 18 U.S.C. § 1951(a); and three
counts of being a Felon in Possession of a Firearm, in
violation of 18 U.S.C. § 922(g).[20] Strain,
through counsel, now challenges her convictions under 18
U.S.C. § 924(c). She claims that her convictions under
§ 924(c) were premised on the residual clause of 18
U.S.C. § 924(c)(3)(B), which as previously discussed, is
unconstitutionally void for vagueness.[21]
Title
18 U.S.C. § 924(c)(1)(A) provides that “[a]ny
person who, during and in relation to any crime of violence .
. . for which the person may be prosecuted in a court of the
United States, uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm”
shall be sentenced to an enhanced penalty. A “crime of
violence” is given two definitions. First, 18 U.S.C.
§ 924(c)(3)(A) (the “force clause”) defines
a crime of violence as a felony, which “has as an
element the use, attempted use, or threatened use of physical
force against the person or property of another.”
Alternatively, 18 U.S.C. § 924(c)(3)(B) (“the
residual clause”) defines a crime of violence as a
felony, which “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.” Strain contends that her armed bank robbery
conviction and her Hobbs Act robbery conviction do not
satisfy the definition of “crime of
violence.”[22] She argues that neither crime
categorically requires the intentional use of violent force
as required by the force clause, 18 U.S.C. §
924(c)(3)(A).[23] Additionally, Strain argues that in
light of Davis § 924(c)’s residual clause
cannot be a basis for her convictions under §
924(c).[24] In order to prevail Strain must show
that her claims are timely and must also show that she is
entitled to habeas relief on the merits.[25]
1.
Whether Strain’s Claims are Timely
Before
proceeding to the merits of Strain’s claims, the Court
must first address whether her Motion to Vacate is timely. A
petition under § 2255 that is based on a newly
recognized constitutional right must be filed within one year
of the Supreme Court decision first recognizing that new
right.[26] Further, this relief is only available
if that right has been “made retroactively applicable
to cases on collateral review.”[27]
Strain’s
argues Davis “constitutes a ‘new’
rule of substantive constitutional law that applies
retroactively to cases on collateral
review.”[28] And, according to Strain, she is
entitled to habeas relief because her convictions were
premised on this unconstitutional definition.[29] Undoubtably,
Davis creates a new constitutional rule.
Davis found that 18 U.S.C. §
924(c)(3)(B)’s definition of “crime of
violence” was unconstitutionally vague.[30] However,
neither the Supreme Court nor the Ninth Circuit has ruled
whether Davis is retroactively applicable to cases
on collateral review. In fact, the dissenting opinion in
Davis acknowledged that the majority opinion left
this question unsettled:
Many
offenders who have already committed violent crimes with
firearms-and who have already been convicted under §
924(c)-may be released early from prison. The Court’s
decision will apply to all defendants whose convictions are
not yet final on direct review and who preserved the
argument. With the benefit of this Court’s decision,
many dangerous offenders who received lengthy prison
sentences as a result of their violent conduct might walk out
of prison early. And who knows whether the ruling will be
retroactive?[31]
In the
absence of a specific finding by higher courts, the Court
looks to the general framework governing retroactivity
articulated in Teague v. Lane.[32] Generally,
new rules of criminal procedure do not apply
retroactively.[33] However, this rule is not absolute, as
there are two categories of new rules that apply
retroactively: (1) new substantive rules; and (2) new
“watershed rules of criminal procedure” which
“implicate[ ] the fundamental fairness and accuracy of
the criminal proceeding.”[34] “A rule is
substantive rather than procedural if it alters the range of
conduct or the class of persons that the law
punishes.”[35] “This includes decisions that
narrow the scope of a criminal statute by interpreting its
terms, as well as constitutional determinations that place
particular conduct or persons covered by the statute beyond
the State’s power to punish.”[36]Procedural
rules, by contrast, “regulate only the manner of
determining the defendant’s
culpability.”[37] Such rules alter “the range of
permissible methods for determining whether a
defendant’s conduct is punishable.”[38] “They
do not produce a class of persons convicted of conduct the
law does not make criminal, but merely raise the possibility
that someone convicted with use of the invalidated procedure
might have been acquitted otherwise.”[39]
The
ruling in Davis is a new substantive rule.
Davis does not merely change the procedure through
which crimes are prosecuted, but instead changes a required
element of a crime itself. It places crimes which only
involve a substantial risk that physical force-and those who
commit them-beyond the Government’s power to punish
under § 924(c). Therefore, under Teague, the
new substantive rule created by Davis must be
applied retroactively to cases on collateral review.
Accordingly, Strain’s arguments brought through her
Motion to Vacate and Motion to Reconsider are timely.
2.
Whether Strain is Entitled to Habeas Relief on the
Merits
To be
entitled to habeas relief on the merits of her claim, Strain
must show that neither of her underlying convictions satisfy
the definition of “crime of violence” under
§ 924(c). Because the statute’s residual clause
has been ruled unconstitutional, the only remaining
definition is the force clause, § 924(c)(3)(A), which
defines a crime of violence as one which “has as an
element the use, attempted use, or threatened use of physical
force against the person or property of another.” If
either of Strain’s underlying crimes satisfy this
definition, her convictions were appropriate, and she is not
entitled to habeas relief.
In
Strain’s case, the “crimes of violence” at
issue are one count of Hobbs Act robbery, 18 U.S.C. §
1951(a), and two counts of armed bank robbery, 18 U.S.C.
§§ 2113(a) & (d).[40] Strain contends that
neither crime satisfies the force clause of §
924(c).[41] First, Strain argues that Hobbs Act
robbery, “does not require the use of violent physical
force…[and] does not require intentional
conduct.”[42] Second, Strain argues that armed bank
robbery falls outside of the force clause “because it
does not satisfy the requirement of ‘violent’
force and because it does not satisfy the additional
requirement that the use of force be
intentional.”[43]
The
Ninth Circuit applies a categorical approach to determine
whether a crime is a “crime of violence” under
the force clause.[44] Under the categorical approach, courts
“do not look to the facts underlying the conviction,
but ‘compare the elements of the statute forming the
basis of the defendant’s conviction with the elements
of’ a ‘crime of
violence.’”[45] “A crime cannot be a
categorical ‘crime of violence’ if the conduct
proscribed by the statute of conviction is broader than the
conduct encompassed by the statutory definition of a
‘crime of violence.’”[46] “Where
a defendant has been convicted under a statute describing
crimes of both violence and non-violence, [a court] need only
find that the charged crime for which the defendant was
convicted constitutes a “crime of violence” to
conclude categorically that the charged offense may serve as
a predicate for a § 924(c)
violation.”[47]
The
Court applies the categorical approach to Hobbs Act robbery,
18 U.S.C. §§ 1951(a) and (b)(1); and armed bank
robbery, 18 U.S.C. § 2113(a), in turn.
a.
Hobbs Act Robbery is a “Crime of Violence”
Strain
argues that Hobbs Act robbery is not categorically a
“crime of violence” for two reasons: first,
Strain contends that “use of force” for purposes
of Hobbs Act robbery does not require the use of violent
physical force; second, Strain argues that placing someone in
“fear of injury” similarly “does not
require the use of violent physical
force.”[48] Therefore, she argues, one could commit
Hobbs Act robbery without committing a “crime of
violence” as defined by § 924(c)(3)(A).
A
person commits Hobbs Act robbery when that person
“obstructs, delays or affects commerce or the movement
of any article or commodity in commerce . . .” by
“the unlawful taking or obtaining of personal property
from the person or in the presence of another, against his
will, by means of actual or threatened force, or violence, or
fear of injury, immediate or future, to his person or
property . . .”[49] Therefore, Hobbs Act robbery may be
accomplished by threatened force or violence or fear of
injury.
The
Ninth Circuit has previously stated that a Hobbs Act
“[r]obbery indisputably qualifies as a crime of
violence” under § 924(c).[50] As Strain correctly
notes, “[r]obbery under the Hobbs Act, is common law
robbery.”[51] The Supreme Court, in Stokeling v.
United States, examined whether common law robbery
constituted a “violent felony” under the Armed
Career Criminal Act (“ACCA”).[52] After a
thorough survey of State law, the Supreme Court found it is
“well-established” that the level of
“force” or “violence” needed to
establish common-law robbery is “[s]ufficient force
must be used to overcome resistance . . . however slight the
resistance.”[53]Furthermore, the Stokeling Court
found that for the purpose of a modern statute like the ACCA,
“[t]he force necessary to overcome a victim’s
physical resistance is inherently
‘violent’”[54]
In
light of the Supreme Court’s finding that common-law
robbery is an “inherently violent” affair, and
the consensus among lower courts that Hobbs Act robbery is
common-law robbery, the Court finds that “physical
...