Henderson v. United States

• Court: District Court, D. Nevada
• Decided: November 8, 2021
• Docket: 3:20-cv-00137
• Status: Unknown

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9 UNITED STATES OF AMERICA, ) ) 10 Plaintiff, ) ) 3:15-cr-00080-RCJ ) 3:20-cv-00137-RCJ 11 vs. ) 3:20-cv-00347-RCJ

) 12 KRISTAFER ROBINSON, ) ORDER CHASE A. HENDERSON, ) 13 ) Defendants. ) 14 )

15 Defendants were charged with Hobbs Act robbery, conspiracy to commit Hobbs Act rob- 16 bery, and brandishing a firearm while committing a crime of violence. They agreed to plead guilty 17 to the last charge in exchange for the Government to drop the other two. Presently, Defendants 18 argue that subsequent caselaw dictates that Hobbs Act robbery does not qualify as a crime of vio- 19 lence and move for relief under 28 U.S.C. § 2255. Because Defendants did not raise this argument 20 before their guilty plea, their agreements expressly waived collateral attacks to their convictions, 21 and the Ninth Circuit has repeatedly rejected this argument, the Court denies these motions and 22 declines to issue a certificate of appealability.1 23 1 Defendant Henderson has also filed a motion, (ECF No. 65), seeking a “status update” on his 24 pending § 2255 motion. As the Court rules on the § 2255 motion in this Order, the Court denies 1 FACTUAL BACKGROUND 2 In November 2015, the grand jury returned an indictment charging both Defendants with 3 three counts: Conspiracy to Interfere with Commerce by Robbery in violation of 18 U.S.C. § 1951; 4 Interference with Commerce by Robbery in violation of 18 U.S.C. § 1951; and Brandishing a Fire- 5 arm During a Crime of Violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii).2 (ECF No. 1.) Both 6 Defendants entered into plea agreements in July 2016. (ECF Nos. 40, 44.) The Court accepted the 7 plea agreements and sentenced Defendants in October 2016. (ECF Nos. 47 (minutes of change of 8 plea hearing), 50 (minutes of sentencing of Defendant Robinson), 51 (minutes of sentencing of 9 Defendant Henderson), 54 (transcript of sentencing hearing), 62 (transcript of change of plea hear- 10 ing).) 11 In the agreements, Defendants agreed to plead guilty to the charge of Brandishing a Firearm 12 During a Crime of Violence in violation of § 924(c)(1)(A)(ii) in exchange for the Government

13 dismissing the other two charges. (ECF Nos. 40; ECF No. 44.) Defendants further agreed to waive 14 a number of their rights, including their right to collaterally attack their convictions; both agree- 15 ments contain the following clause: “The defendant also knowingly and expressly waives all col- 16 lateral challenges, including any claims under 28 U.S.C. § 2255, to his conviction, sentence, and 17 the procedure by which the Court adjudicated guilt and imposed sentence, except non-waivable 18 claims of ineffective assistance of counsel.” (ECF Nos. 40 at 11; ECF No. 44 at 12.) 19 According to the plea agreements, both Defendants stipulated to the following facts: On 20 September 19, 2015, Defendants wore ski masks and confronted two employees of Harbor Freight 21 2 Defendant Robinson oddly claims for the first time that he was not a principal of the Hobbs Act 22 robbery but merely an aider and abettor. This contention is frivolous. He was charged and admitted to committing Hobbs Act robbery—not aiding and abetting. (ECF No. 44 at 3 (“The defendant 23 committed the crime of Interference with Commerce by Robbery as charged in Count Two of the Indictment, which is a crime of violence.”) Furthermore, what was considered “aiding and abet- 24 ting” under traditional common law have been abrogated and is treated the same under federal law 1 in Carson City as they were locking the front door. (ECF No. 40 at 4.)3 At gunpoint (Defendant 2 Henderson bore a Smith and Wessen handgun and Defendant Robinson bore a BB gun), Defend- 3 ants commanded the employees to go back inside of the business. (Id.) Defendants then compelled 4 the employees to turn the alarm off and to load $5,355.44 in cash into their bag. (Id. at 4–7.) 5 Defendants also ripped the phone cords out of the wall, took the employees’ cell phones, and the 6 keys to one of their cars. (Id.) 7 LEGAL STANDARD 8 A prisoner in custody “may move the court which imposed the sentence to vacate, set aside 9 or correct the sentence” where the sentence is unconstitutional or unlawful, the court lacked “ju- 10 risdiction to impose such sentence,” “the sentence was in excess of the maximum authorized by 11 law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). This remedy is available 12 only where the error is jurisdictional, constitutional, contains “a fundamental defect which inher-

13 ently results in a complete miscarriage of justice,” or includes “an omission inconsistent with the 14 rudimentary demands of fair procedure.” Hill v. United States, 368 U.S. 424, 428 (1962). A peti- 15 tioner must prove, by a preponderance of the evidence, any grounds for vacating or modifying a 16 sentence. Johnson v. Zerbst, 304 U.S. 458, 468–69 (1938). 17 A court should deny the petition without an evidentiary hearing if the record “conclusively 18 show[s] that the prisoner is entitled to no relief.” § 2255(b); accord Shah v. United States, 878 19 F.2d 1156, 1160 (9th Cir. 1989). Otherwise, a court should serve notice upon the government and 20 grant a hearing to make the necessary findings of fact and conclusions of law to rule on the petition. 21 § 2255(b). 22 ///

24 3 The Court cites to Defendant Henderson’s plea agreement but notes that Defendant Robinson’s 1 Upon denial, a court should determine whether to issue a certificate of appealability. Rules 2 Governing § 2255 Proceedings 11(a). A certificate is appropriate when the applicant has “made a 3 substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). That is, the 4 petitioner must show that “reasonable jurists could debate whether . . . the petition should [be] 5 resolved in a different manner or that the issues presented [are] ‘adequate to deserve encourage- 6 ment to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Es- 7 telle, 463 U.S. 880, 893 (1983)). 8 ANALYSIS 9 Defendants both move to invalidate their convictions of brandishing a firearm during and 10 in relation to a crime of violence, in violation of § 924(c)(1)(A)(ii). The Court agrees with the 11 Government. Both Defendants has procedurally defaulted this argument, waived this collateral 12 challenge, and, even then, it is without merit as the Ninth Circuit has repeatedly rejected the argu-

13 ment. The Court denies these motions and declines to issue a certificate of appealability. 14 I. In Forma Pauperis Motion 15 Before turning to the substantive motions, the Court has reviewed Defendant Henderson’s 16 petition to proceed in forma pauperis on his § 2255 motion along with the attached financial infor- 17 mation and finds that he has satisfied the requirements for financial hardship. (ECF No. 55.) It is 18 clear Defendant Henderson is not financially able to meet the filing requirements for post-convic- 19 tion filings. Therefore, good cause appearing, the Court grants Defendant Henderson’s motion and 20 allows him to seek post-conviction relief without the prepayment of fees or costs. 21 II. Defendants Do Not Overcome Their Procedural Default of These Challenges 22 Neither Defendant raised the challenge that Hobbs Act robbery or “aiding and abetting

23 Hobbs Act robbery” fails to qualify as a crime of violence for the purposes of their convictions of 24 brandishing a firearm during and in relation to a crime of violence, in violation of 1 § 924(c)(1)(A)(ii). Where a movant raises a claim for the first time in a § 2255 motion (i.e., did 2 not raise the claim at the trial level or on direct appeal), that claim is procedurally defaulted. Bous- 3 ley v. United States, 523 U.S. 614, 621 (1998). A court may not reach a procedurally defaulted 4 claim unless the movant shows “cause and prejudice” or actual innocence. Id. at 622. A movant 5 may show cause by demonstrating an “external impediment” that prevented him from asserting a 6 claim on direct review and may show prejudice by demonstrating the detriment attributable to the 7 cause. Murray v. Carrier, 477 U.S. 478, 492 (1986). 8 An assertion of “futility cannot constitute cause if it means simply that a claim was unac- 9 ceptable to that particular court at that particular time.” Bousley, 523 U.S. at 623 (internal quotation 10 marks omitted) (quoting Engle v. Isaac, 456 U.S. 107, 130 n.35 (1982)). On the other hand, a claim 11 that is truly “novel”—where the law at the time of appeal did not provide counsel with a “reason- 12 able basis” for the claim—can constitute “cause” to excuse a procedural default. Reed v. Ross, 468

13 U.S. 1, 16–17 (1984). In determining whether a claim is “novel” for purposes of establishing cause 14 for a procedural default, the relevant inquiry is not “whether subsequent legal developments have 15 made counsel’s task easier, but whether at the time of the default the claim was ‘available’ at all.” 16 Smith v. Murray, 477 U.S. 527, 537 (1986). 17 A defendant may be entitled to relief if he can show that “a constitutional violation has 18 probably resulted in the conviction of one who is actually innocent.’” Murray v. Carrier, 477 U.S. 19 478, 496 (1986). But as the Supreme Court emphasized, “in this regard … ‘actual innocence’ 20 means factual innocence, not mere legal insufficiency.” Bousley, 523 U.S. at 623 (quoting Sawyer 21 v. Whitley, 505 U.S. 333, 339 (1992)). In attempting to make that showing, “[a]ny attempt to con- 22 tradict the factual basis of a valid plea must fail.” United States v. Morrison, 113 F.3d 1020, 1021

23 (9th Cir. 1997). 24 /// 1 Based on their detailed plea agreements, Defendants cannot successfully maintain a claim 2 of actual innocence, so the Court turns to futility. At the time of the Defendants’ sentencing in 3 October 2016, federal caselaw was replete with claims that Hobbs Act robbery was not a crime of 4 violence under § 924(c)(1)(A)(ii). See, e.g., United States v. Howard, No. 15–10042, 2016 WL 5 2961978, at *1 (9th Cir. May 23, 2016), as amended (June 24, 2016); United States v. Hare, 820 6 F.3d 93, 105 (4th Cir. 2016) (“Appellants also challenge their firearm convictions on the ground 7 that, after the Supreme Court’s decision in Johnson v. United States . . . a Hobbs Act robbery no 8 longer qualifies as a crime of violence.”); In re Fleur, 824 F.3d 1337, 1338 (11th Cir. 2016) (same); 9 United States v. Pena, 190 F. Supp. 3d 317, 319 (E.D.N.Y. 2016) (same); United States v. Loper, 10 No. 2:14-CR-321-GMN-NJK, 2016 WL 4528959, at *1 (D. Nev. Aug. 29, 2016) (“In his Motion 11 to Dismiss, Defendant seeks to dismiss Counts Three, Five, Seven, Nine, Eleven, and Thirteen of 12 the Superseding Indictment because ‘the predicate Hobbs Act robbery as defined by [18 U.S.C.]

13 § 1951 does not qualify as a ‘crime of violence’ as a matter of law.’”); United States v. Smith, 215 14 F. Supp. 3d 1026, 1028 (D. Nev. May 18, 2016) (“The defendants move to dismiss all of the 15 § 924(c) counts, arguing that Hobbs Act robbery and conspiracy to commit Hobbs Act robbery do 16 not qualify as crimes of violence under the force clause of § 924(c), and that § 924(c)’s residual 17 clause is unconstitutionally vague in light of the Supreme Court’s decision last term in Johnson v. 18 United States.”) 19 Even if this Court were to entertain Defendant Robinson’s contention that he was merely 20 an aider and abettor for the Hobbs Act robbery charge, he still fails to show the necessary external 21 impediment. This too was a frequently made challenge at the time of his sentencing. See, e.g., 22 United States v. Mitchell, 23 F.3d 1, 3 (1st Cir. 1994) (aiding and abetting the commission of a

23 crime of violence is a crime of violence itself); United States v. Groce, 999 F.2d 1189, 1191–92 24 (7th Cir. 1993) (aiding and abetting burglary is “violent felony” under Armed Career Criminal 1 Act, 18 U.S.C. § 924(e)(1)); United States v. Simpson, 979 F.2d 1282, 1285-86 (8th Cir. 1992) 2 (defendant, having aided and abetted bank robbery, was subject to sentencing enhancement under 3 18 U.S.C. § 924(c)(1) for having aided and abetted use of firearm during crime of violence); United 4 States v. Hathaway, 949 F.2d 609, 610 (2d Cir. 1991) (per curiam) (Vermont crime of third-degree 5 arson, which prohibits “secondary acts such as counseling, aiding or procuring the burning,” falls 6 within “generic definition” of arson offense and so is “violent felony”), cert. denied, 502 U.S. 1119 7 (1992)). 8 The Court is therefore convinced Defendants’ claim that Hobbs Act robbery was not a 9 crime of violence under § 924(c) is in procedural default and that Defendants can neither show 10 actual innocence or cause. This alone merits denying the motion, but the Court will briefly two 11 additional bases that further compel this outcome. 12 III. Defendants Expressly Waived These Collateral Challenges in Their Plea Agreements

13 Both Defendants agreed to the following term in their plea agreement, which reads: “The 14 defendant also knowingly and expressly waives all collateral challenges, including any claims un- 15 der 28 U.S.C. § 2255, to his conviction, sentence, and the procedure by which the Court adjudi- 16 cated guilt and imposed sentence, except non-waivable claims of ineffective assistance of coun- 17 sel.” (ECF Nos. 40 at 11; ECF No. 44 at 12.) Plea agreements and similar to contracts and a crim- 18 inal defendant may barter for benefits by waiving many but not all collateral challenges. United 19 States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir. 2005). A defendant can waive almost all chal- 20 lenges to a conviction including retroactive changes to substantive law in his favor. United States 21 v. Snider, 180 F. Supp. 3d 780, 791 (D. Or. 2016) (collecting cases). As such, the waivers further 22 compel denial of Defendants § 2255 motions.

23 /// 24 /// 1 IV. Binding Ninth Circuit Case Law Forecloses the Underlying Argument 2 Even if the Court were to consider the underlying substance of the motions, they are wholly 3 without merit. In recent years, the Ninth Circuit has repeatedly held that Hobbs Act robbery is a 4 crime of violence under § 924(c). See, e.g., United States v. Dominguez, 954 F.3d 1251 (9th Cir. 5 2020); United States v. Esteban, 834 F. App’x 378 (9th Cir. 2021) (unpublished) (“Esteban’s con- 6 tention that Hobbs Act robbery, 18 U.S.C. § 1951, is not a crime of violence for purposes of 18 7 U.S.C. § 924(c)(3)(A) is foreclosed [by Dominguez] . . . Esteban asserts that Dominguez was 8 wrongly decided, but as a three-judge panel, we are bound by the decision.” (citing Miller, 335 9 F.3d at 900)); United States v. Stankus, 834 F. App’x 375 (9th Cir. 2021) (unpublished) (same); 10 United States v. Espinoza, 834 F. App’x 379 (9th Cir. 2021) (unpublished) (same); United States 11 v. Lott, 834 F. App’x 370 (9th Cir. 2021) (unpublished) (same); United States v. Tuan Ngoc Luong, 12 965 F.3d 973, 990 (9th Cir. 2020).

13 V. No Certificate of Appealability Shall Issue 14 As the Court denies the petition, it must determine whether to issue a certificate of appeal- 15 ability. Defendants have not shown that reasonable jurists would debate these claims nor that the 16 claims should proceed further. See Slack, 529 U.S. at 484. Rather, as discussed above, binding 17 precedent clearly forecloses them. The Court therefore declines to issue a certificate of appeala- 18 bility. 19 CONCLUSION 20 IT IS HEREBY ORDERED that Motion to Proceed In Forma Pauperis (ECF No. 55) is 21 GRANTED nunc pro tunc. 22 IT IS FURTHER ORDERED that Motion to Vacate, Set Aside, or Correct Sentence (ECF

23 No. 57) is DENIED. 24 /// 1 IT IS FURTHER ORDERED that Motion to Vacate, Set Aside, or Correct Sentence (ECF 2 || No. 63) is DENIED. 3 IT IS FURTHER ORDERED that Amended Motion to Vacate, Set Aside, or Correct Sen- 4 || tence (ECF No. 64) is DENIED. 5 IT IS FURTHER ORDERED that Motion for Status Update (ECF No. 65) is DENIED AS 6 || MOOT. 7 IT IS FURTHER ORDERED that no certificate of appealability shall issue. 8 IT IS FURTHER ORDERED that the Clerk shall ENTER a separate and final judgment 9 || under Federal Rule of Civil Procedure 58(a) as directed by Kingsbury v. United States, 900 F.3d 10 || 1147 (9th Cir. 2018). 11 IT IS SO ORDERED. 12 || Dated November 8, 2021 13 ; : 14 A . ROB C. JONES 15 United Safes District Judge 16 17 18 19 20 21 22 23 24

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