United States District Court, D. Hawaii
ORDER REFERRING TO THE NINTH CIRCUIT DEFENDANT DAVID VERDEN WILLIAMS’S SECOND MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE; EXHIBIT A
Susan Oki Mollway United States District Judge.
Relying on Johnson v. United States, 135 S.Ct. 2551 (2015), and Welch v. United States, 136 S.Ct. 1257 (2016), Defendant David Verden Williams has filed with this court a motion seeking relief under 28 U.S.C. § 2255. Williams has filed two related motions that he asks the court to rule on prior to addressing the merits of the pending § 2255 motion.
First, he asks this court to release him on bail immediately because, he says, his sentence should be shortened under the reasoning in Johnson that invalidated as unconstitutionally vague language in 18 U.S.C. § 924(e)(2)(B), which is part of the Armed Career Criminal Act (“ACCA”). While not sentenced pursuant to the ACCA, Williams was sentenced as a career offender under the United Sentencing Guidelines, which include, at USSG § 4B1.2(a), language identical to the invalidated language in 18 U.S.C. § 924(e)(2)(B).
Second, Williams asks this court to determine that his present § 2255 motion is not a second or successive § 2255 motion such that he must first seek certification of the present § 2255 motion from the Ninth Circuit under 28 U.S.C. § 2255(h). In the alternative, Williams asks this court to refer his present § 2255 motion to the Ninth Circuit under Ninth Circuit Rule 22-3(a) so that the Ninth Circuit can determine whether to provide the requested certification.
This order addresses only the issue of whether Williams must obtain certification of his present § 2255 motion. Determining that he must, this court, by this order, refers the § 2255 motion to the Ninth Circuit, attaching as Exhibit A to this order ECF Nos. 136, 138, and 139, which contain Williams’s § 2255 motion filed on April 4, 2016. This court is without jurisdiction to address the bail motion or the § 2255 motion unless the Ninth Circuit provides the necessary certification.
I. BACKGROUND INFORMATION
Pursuant to a Memorandum of Plea Agreement, Williams pled guilty to having committed a bank robbery in violation of 18 U.S.C. § 2113(a). See ECF Nos. 68, 69. He was sentenced on October 7, 2013, to 151 months in custody, and judgment was entered on October 11, 2013. See ECF Nos. 77, 79. His sentence reflected a career offender enhancement under the Sentencing Guidelines, given Williams’s prior convictions. Under USSG § 4B1.1(a):
(a) A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
There is no dispute in this case concerning subsection (1) or subsection (3) of USSG § 4B1.1(a). The only dispute concerns subsection (2). That is, the issue raised by Williams is whether the offense of conviction, bank robbery in violation of 18 U.S.C. § 2113(a), is a crime of violence that triggers the guideline enhancement for a career offender.
“Crime of violence” is defined in USSG § 4B1.2(a):
(a) The term “crime of violence” means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that-
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
Subsection (1) of the “crime of violence” definition in USSG § 4B1.2(a)(1) is frequently referred to as the “elements clause.” The words “is burglary of a dwelling, arson, or extortion, involves use of explosives” in the definition in USSG § 4B1.2(a)(2) are frequently called the “enumerated offenses” clause. The words “or otherwise involves conduct that present a serious potential risk of physical injury to another” in USSG § 4B.1.2(a)(2) are the “residual clause.” The “residual clause” in § 4B1.2(a)(2) is identical to the ACCA’s “residual clause, ” which the Supreme Court invalidated in Johnson.
At the time of sentencing, no party raised any challenge to the “residual clause” or to the guideline calculation. In applying the career offender enhancement to Williams, the court, like the parties, did not address whether bank robbery fell under the “elements clause” or the “residual clause.” No one articulated any concern that bank robbery might not fall under either clause.
Williams appealed. See ECF No. 80. On July 29, 2014, the Ninth Circuit dismissed the appeal, noting that, in his plea agreement, Williams had waived his right to appeal. See ECF No. 101.
Williams, proceeding pro se, filed his first § 2255 motion on February 25, 2015. See ECF No. 107. The motion was denied by this court on August 12, 2015. See ECF No. 133. Although Johnson had been decided by the time this court ruled, no Johnson-related claim was before this court in this case, and this court’s order did not address Johnson. No appeal was taken from this court’s order of August 12, 2015.
Subsequently, the Federal Public Defender’s Office was appointed to review cases identified as potentially affected by Johnson. On April 4, 2016, defense counsel filed a new § 2255 motion, challenging Williams’s designation as a career offender under the Sentencing Guidelines. See ECF No. 136. As noted earlier, this § 2255 motion was accompanied by a motion seeking release on bail pending a decision on the § 2255 motion, and by a motion seeking this court’s ruling that the ...