1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Gentry Dee Deel, No. CV-16-08136-PCT-GMS CR-06-01147-PCT-GMS 10 Petitioner, ORDER 11 v.
12 United States of America,
13 Respondent. 14 15 16 Pending before the Court is the Ninth Circuit’s reversal and remand of this Court’s 17 order rejecting the Report and Recommendation (“R&R”) issued by Magistrate Judge 18 James Metcalf. (Doc. 57.) Magistrate Judge Metcalf recommended that the Court grant 19 Petitioner Gentry Dee Deel’s Motion to Vacate, Set Aside, or Correct Sentence pursuant 20 to 28 U.S.C. § 2255 (“Motion to Vacate”). (Doc. 43.) For the reasons discussed below, 21 the Court grants Petitioner’s Motion to Vacate and adopts the R&R. 22 BACKGROUND 23 In October 2007, a jury convicted Petitioner of the following four offenses: 24 (i) Assault by Striking, Beating, or Wounding in violation of 18 U.S.C. § 1153 and 25 113(a)(4); (ii) Assault Resulting in Serious Bodily Injury in violation of 18 U.S.C. § 1153 26 and 113(a)(6); and (iii) Discharging a Firearm During a Crime of Violence in violation of 27 18 U.S.C. § 924(c)(1)(A). On April 17, 2008, the Court sentenced Petitioner. Petitioner 28 appealed his convictions and sentences. On August 28, 2009, the Ninth Circuit affirmed 1 Petitioner’s convictions and sentences. 2 On June 25, 2016, Petitioner filed the Motion to Vacate in this case, alleging his 3 conviction in violation of 18 U.S.C. § 924(c)(1)(A) is invalid because the operative 4 definition of crime of violence under § 924(c)(3)(B) (“Residual Clause”) is void for 5 vagueness and the definition under § 924(c)(3)(A) (“Elements Clause”) is not met. In his 6 R&R, the Magistrate Judge recommended that the Court grant Petitioner’s Motion to 7 Vacate. Respondent subsequently filed an objection to the R&R. (Doc. 46.) On February 8 12, 2019, the Court rejected the R&R and denied Petitioner’s Motion to Vacate on 9 untimeliness grounds. (Doc. 53.) 10 On April 8, 2019, Petitioner filed a notice of appeal. While on appeal, the United 11 States Supreme Court issued the decision in United States v. Davis, 139 S. Ct. 2319 (2019), 12 which struck down the Residual Clause. Based on this decision, Petitioner and Respondent 13 jointly moved for remand. Joint Mot. for Remand, United States v. Gentry Dee Deel, 14 No. 19-15665 (9th Cir. May 18, 2020). On June 25, 2020, the Ninth Circuit vacated the 15 Court’s February 2019 order dismissing Petitioner’s Motion to Vacate on untimeliness 16 grounds and remanded this case to the Court for further consideration of the Motion to 17 Vacate. (Doc. 57.) 18 DISCUSSION 19 I. Standard of Review 20 A “district judge may refer dispositive pretrial motions, and petitions for writ of 21 habeas corpus, to a magistrate, who shall conduct appropriate proceedings and recommend 22 dispositions.” Thomas v. Arn., 474 U.S. 140, 141 (1985); see also 28 U.S.C. 23 § 636(b)(1)(B); Estate of Connors v. O’Connor, 6 F.3d 656, 658 (9th Cir. 1993). Any party 24 “may serve and file written objections” to a report and recommendation by a magistrate 25 judge. 28 U.S.C. § 636(b)(1). “A judge of the court shall make a de novo determination 26 of those portions of the report or specified findings or recommendations to which objection 27 is made.” Id. District courts, however, are not required to conduct “any review at all . . . 28 of any issue that is not the subject of an objection.” Arn., 474 U.S. at 149. A district judge 1 “may accept, reject, or modify, in whole or in part, the findings or recommendations made 2 by the magistrate.” 28 U.S.C. § 636(b)(1). 3 II. Analysis 4 In its objections, Respondent argued the Court should decline to adopt the R&R 5 because Petitioner’s Motion to Vacate was untimely and Petitioner’s claim is procedurally 6 defaulted. As Respondent waived the timeliness bar in the joint motion to remand, the 7 Court only considers Respondent’s arguments as to procedural default. Joint Mot. For 8 Remand at 4. 9 “Where a defendant has procedurally defaulted a claim by failing to raise it on direct 10 review, the claim may be raised in habeas only if the defendant can first demonstrate either 11 cause and actual prejudice, or that he is actually innocent.” Bousley v. U.S., 523 U.S. 614, 12 622 (1998) (internal quotation marks and citations omitted). Respondent disputes whether 13 cause and prejudice have been established. 14 A. Cause 15 Cause may be shown when a claim is “novel.” See Reed v. Ross, 468 U.S. 1, 15 16 (1984). A claim can be considered novel where a Supreme Court decision: (1) “explicitly 17 overrule[s] one of [the Court’s] precedents”; (2) “overtur[ns] a longstanding and 18 widespread practice to which th[e] Court has not spoken, but which a near-unanimous body 19 of lower court authority has expressly approved”; or (3) “disapprove[s] a practice th[e] 20 Court arguably has sanctioned in prior cases.” Id. at 17. 21 Respondent argues the Magistrate Judge misinterpreted the third Reed prong. (Doc. 22 46 at 14.) Respondent contends that the “theoretical question of whether residual clauses 23 are unconstitutionally vague” does not fit within the Supreme Court’s interpretation of 24 what a “practice” is. Id. In U.S. v. Johnson, where the Reed factors originated, the Supreme 25 Court stated that a new constitutional rule arises where there is “such an abrupt and 26 fundamental shift in doctrine as to constitute an entirely new rule which in effect replaced 27 an older one.” 457 U.S. 537, 551 (1982) (quoting Hanover Shoe, Inc. v. United Shoe Mach. 28 Corp., 392 U.S. 481, 498 (1968)). One instance where there is a break in the law, the 1 Supreme Court explained, is when the Court “disapproves a practice this Court arguably 2 has sanctioned in prior cases.” Id. at 551. The Supreme Court then cited to three cases as 3 examples. Id. See Gosa v. Mayden, 413 U.S. 665, 675 (1973) (plurality opinion) 4 (prosecution of members of the Armed Services in military court for nonservice-connected 5 crimes), Adams v. Illinois, 405 U.S. 278, 283–84 (1972) (provision of counsel at a 6 preliminary hearing), Johnson v. New Jersey, 384 U.S. 719, 734 (1966) (use of un- 7 Mirandized statements in trials commencing after the Miranda standard was announced). 8 Other than providing these examples, the Supreme Court did not expressly define or limit 9 what “practice” means in Johnson. Nor did the Supreme Court define what “practice” 10 means in Reed. 468 U.S. 11 The Magistrate Judge did not misinterpret the third Reed prong.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Gentry Dee Deel, No. CV-16-08136-PCT-GMS CR-06-01147-PCT-GMS 10 Petitioner, ORDER 11 v.
12 United States of America,
13 Respondent. 14 15 16 Pending before the Court is the Ninth Circuit’s reversal and remand of this Court’s 17 order rejecting the Report and Recommendation (“R&R”) issued by Magistrate Judge 18 James Metcalf. (Doc. 57.) Magistrate Judge Metcalf recommended that the Court grant 19 Petitioner Gentry Dee Deel’s Motion to Vacate, Set Aside, or Correct Sentence pursuant 20 to 28 U.S.C. § 2255 (“Motion to Vacate”). (Doc. 43.) For the reasons discussed below, 21 the Court grants Petitioner’s Motion to Vacate and adopts the R&R. 22 BACKGROUND 23 In October 2007, a jury convicted Petitioner of the following four offenses: 24 (i) Assault by Striking, Beating, or Wounding in violation of 18 U.S.C. § 1153 and 25 113(a)(4); (ii) Assault Resulting in Serious Bodily Injury in violation of 18 U.S.C. § 1153 26 and 113(a)(6); and (iii) Discharging a Firearm During a Crime of Violence in violation of 27 18 U.S.C. § 924(c)(1)(A). On April 17, 2008, the Court sentenced Petitioner. Petitioner 28 appealed his convictions and sentences. On August 28, 2009, the Ninth Circuit affirmed 1 Petitioner’s convictions and sentences. 2 On June 25, 2016, Petitioner filed the Motion to Vacate in this case, alleging his 3 conviction in violation of 18 U.S.C. § 924(c)(1)(A) is invalid because the operative 4 definition of crime of violence under § 924(c)(3)(B) (“Residual Clause”) is void for 5 vagueness and the definition under § 924(c)(3)(A) (“Elements Clause”) is not met. In his 6 R&R, the Magistrate Judge recommended that the Court grant Petitioner’s Motion to 7 Vacate. Respondent subsequently filed an objection to the R&R. (Doc. 46.) On February 8 12, 2019, the Court rejected the R&R and denied Petitioner’s Motion to Vacate on 9 untimeliness grounds. (Doc. 53.) 10 On April 8, 2019, Petitioner filed a notice of appeal. While on appeal, the United 11 States Supreme Court issued the decision in United States v. Davis, 139 S. Ct. 2319 (2019), 12 which struck down the Residual Clause. Based on this decision, Petitioner and Respondent 13 jointly moved for remand. Joint Mot. for Remand, United States v. Gentry Dee Deel, 14 No. 19-15665 (9th Cir. May 18, 2020). On June 25, 2020, the Ninth Circuit vacated the 15 Court’s February 2019 order dismissing Petitioner’s Motion to Vacate on untimeliness 16 grounds and remanded this case to the Court for further consideration of the Motion to 17 Vacate. (Doc. 57.) 18 DISCUSSION 19 I. Standard of Review 20 A “district judge may refer dispositive pretrial motions, and petitions for writ of 21 habeas corpus, to a magistrate, who shall conduct appropriate proceedings and recommend 22 dispositions.” Thomas v. Arn., 474 U.S. 140, 141 (1985); see also 28 U.S.C. 23 § 636(b)(1)(B); Estate of Connors v. O’Connor, 6 F.3d 656, 658 (9th Cir. 1993). Any party 24 “may serve and file written objections” to a report and recommendation by a magistrate 25 judge. 28 U.S.C. § 636(b)(1). “A judge of the court shall make a de novo determination 26 of those portions of the report or specified findings or recommendations to which objection 27 is made.” Id. District courts, however, are not required to conduct “any review at all . . . 28 of any issue that is not the subject of an objection.” Arn., 474 U.S. at 149. A district judge 1 “may accept, reject, or modify, in whole or in part, the findings or recommendations made 2 by the magistrate.” 28 U.S.C. § 636(b)(1). 3 II. Analysis 4 In its objections, Respondent argued the Court should decline to adopt the R&R 5 because Petitioner’s Motion to Vacate was untimely and Petitioner’s claim is procedurally 6 defaulted. As Respondent waived the timeliness bar in the joint motion to remand, the 7 Court only considers Respondent’s arguments as to procedural default. Joint Mot. For 8 Remand at 4. 9 “Where a defendant has procedurally defaulted a claim by failing to raise it on direct 10 review, the claim may be raised in habeas only if the defendant can first demonstrate either 11 cause and actual prejudice, or that he is actually innocent.” Bousley v. U.S., 523 U.S. 614, 12 622 (1998) (internal quotation marks and citations omitted). Respondent disputes whether 13 cause and prejudice have been established. 14 A. Cause 15 Cause may be shown when a claim is “novel.” See Reed v. Ross, 468 U.S. 1, 15 16 (1984). A claim can be considered novel where a Supreme Court decision: (1) “explicitly 17 overrule[s] one of [the Court’s] precedents”; (2) “overtur[ns] a longstanding and 18 widespread practice to which th[e] Court has not spoken, but which a near-unanimous body 19 of lower court authority has expressly approved”; or (3) “disapprove[s] a practice th[e] 20 Court arguably has sanctioned in prior cases.” Id. at 17. 21 Respondent argues the Magistrate Judge misinterpreted the third Reed prong. (Doc. 22 46 at 14.) Respondent contends that the “theoretical question of whether residual clauses 23 are unconstitutionally vague” does not fit within the Supreme Court’s interpretation of 24 what a “practice” is. Id. In U.S. v. Johnson, where the Reed factors originated, the Supreme 25 Court stated that a new constitutional rule arises where there is “such an abrupt and 26 fundamental shift in doctrine as to constitute an entirely new rule which in effect replaced 27 an older one.” 457 U.S. 537, 551 (1982) (quoting Hanover Shoe, Inc. v. United Shoe Mach. 28 Corp., 392 U.S. 481, 498 (1968)). One instance where there is a break in the law, the 1 Supreme Court explained, is when the Court “disapproves a practice this Court arguably 2 has sanctioned in prior cases.” Id. at 551. The Supreme Court then cited to three cases as 3 examples. Id. See Gosa v. Mayden, 413 U.S. 665, 675 (1973) (plurality opinion) 4 (prosecution of members of the Armed Services in military court for nonservice-connected 5 crimes), Adams v. Illinois, 405 U.S. 278, 283–84 (1972) (provision of counsel at a 6 preliminary hearing), Johnson v. New Jersey, 384 U.S. 719, 734 (1966) (use of un- 7 Mirandized statements in trials commencing after the Miranda standard was announced). 8 Other than providing these examples, the Supreme Court did not expressly define or limit 9 what “practice” means in Johnson. Nor did the Supreme Court define what “practice” 10 means in Reed. 468 U.S. 11 The Magistrate Judge did not misinterpret the third Reed prong. The question of 12 whether residual clauses are unconstitutional fits neatly in the overall rule statement in 13 Johnson that a new constitutional rule arises where there is an abrupt shift in doctrine. 14 Furthermore, the Court does not find, and Respondent does not provide, case law that 15 expressly limits “practice” to Respondent’s narrow interpretation. Instead, the Court has 16 only found cases that find that the question of whether residual clauses are 17 unconstitutionally vague falls within the third Reed prong. See, e.g., Cross v. United States, 18 892 F.3d 288, 296 (7th Cir. 2018), United States v. Douglas, 406 F. Supp. 3d 541, 547 19 (E.D. Va. 2019), United States v. Jimenez-Segura, 1:16-cv-805, 2020 WL 4514584, at *6-7 20 (E.D. Va. Aug. 4, 2020). Accordingly, Respondent’s objection is overruled. 21 B. Prejudice 22 Respondent argues Petitioner cannot show actual prejudice because the Residual 23 Clause is not unconstitutionally vague and assault resulting in serious bodily injury is a 24 crime of violence under the Elements Clause. 25 In Davis, the Supreme Court held that the Residual Clause is unconstitutionally 26 vague. 139 S. Ct. at 2336. Although the Ninth Circuit has yet to address the issue, other 27 circuits have concluded that Davis announced a substantive rule of constitutional law 28 retroactively applicable on collateral review. See United States v. Reece, 938 F.3d 630, 1 635 (5th Cir. 2019), United States v. Bowen, 936 F.3d 1091, 1097 (10th Cir. 2019), In re 2 Hammoud, 931 F.3d 1032, 1031 (11th Cir. 2019). The Court will follow the holdings of 3 these circuits. Therefore, the Court finds that the Residual Clause is unconstitutionally 4 vague. 5 In regard to the Elements Clause, Respondent bases its rejection of the Magistrate 6 Judge’s ruling on the grounds that Voisine v. United States, 136 S. Ct. 2272 (2016) 7 implicitly overruled the holding in Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 8 2006) (en banc). In Fernandez-Ruiz, the Ninth Circuit held that “crimes of recklessness 9 cannot be crimes of violence.” 466 F.3d at 1130. The Ninth Circuit recently confirmed 10 that Voisine did not overrule Fernandez-Ruiz. In United States v. Begay, the Ninth Circuit 11 stated that Voisine is not irreconcilable with circuit precedent and held that a crime that can 12 be committed recklessly cannot constitute a crime of violence under the Elements Clause. 13 934 F.3d 1033,1038–39. Therefore, Respondent’s objection is overruled. 14 CONCLUSION 15 Having reviewed the record as it relates to Respondent’s objections de novo, the 16 Court accepts the Report and Recommendation and grants the Petitioner’s Motion to 17 Vacate. Accordingly, 18 IT IS ORDERED that Respondent United States of America’s Objections to the 19 Report and Recommendation (Doc. 46) are OVERRULED. 20 IT IS FURTHER ORDERED that the Report and Recommendation of Magistrate 21 Judge James Metcalf (Doc. 43) is ADOPTED. 22 IT IS FURTHER ORDERED that Petitioner’s Revised Motion under 28 U.S.C. 23 § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 8) 24 is GRANTED. 25 / / / 26 / / / 27 / / / 28 1 IT IS FURTHER ORDERED directing the Clerk to terminate this action and enter □□ judgment accordingly. 3 Dated this 8th day of October, 2020. Wars ) ; A Whacrsay Sooo) 6 Chief United states District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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