United States District Court, D. Hawaii
ORDER DENYING DEFENDANT’S MOTION FOR RELEASE ON
BAIL, AND REQUESTING SUPPLEMENTAL BRIEFING
MICHAEL SEABRIGHT, CHIEF UNITED STATES DISTRICT JUDGE
the court are (1) Defendant Scott Michael Carter’s
(“Defendant”) Motion Under 28 U.S.C. § 2255
to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody (“§ 2255 Motion”), Doc. No.
79; and (2) his corresponding Motion for Release on Bail,
seeking release while the court considers the § 2255
Motion, Doc. No. 81. Defendant argues that his 132-month
sentence, imposed on August 27, 2007 under the Armed Career
Criminal Act, 18 U.S.C. § 924(e) (“ACCA”),
is unconstitutional under Johnson v. United States,
135 S.Ct. 2551 (2015), and Descamps v. United
States, 133 S.Ct. 2276 (2013).
on the following, the Motion for Release on Bail is DENIED.
The court, however, requests supplemental briefing from the
parties as to whether any exception might apply to the
one-year limitation period in 28 U.S.C. §
FACTUAL AND LEGAL BACKGROUND
April 5, 2007, pursuant to a March 30, 2007 Memorandum of
Plea Agreement (“Plea Agreement”), Defendant pled
guilty to two Counts of a March 29, 2007 Indictment: (1)
conspiracy to distribute, and to possess with intent to
distribute, methamphetamine, in violation of 21 U.S.C.
§§ 846, 841(a)(1) & 841(b)(1)(B); and (2) felon
in possession of a firearm subsequent to three convictions
for violent felonies, in violation of 18 U.S.C. §§
921(g)(1) & 924(e)(1). Doc. Nos. 37, 38. As to the
felon-in-possession Count, the Indictment charged Defendant
with having three prior felony convictions for first degree
burglary under Hawaii law. Doc. No. 27. In the Plea Agreement
-- which was accepted by the court on August 20, 2007, Doc.
No. 53 -- Defendant stipulated factually and legally to the
following regarding his prior burglary convictions:
(a) Factual stipulation as to prior burglary
convictions: Defendant hereby admits to the following
facts, such that it will not be necessary to prove the
factual allegations contained in the Notice [of United
States’ Intent to Seek Enhanced Penalties Under 18
U.S.C. § 924(e)]:
(1) All of the facts and averments describing
defendant’s prior burglary convictions, as contained
and recited in the Notice, are correct;
(2) These prior burglary convictions are defendant’s
convictions and are final at the present time and were also
final as of the time period charged in the Indictment;
(3) The charged crimes therein, namely Burglary in the first
degree, are felony offenses under Hawaii state law, for which
the maximum punishment is ten (10) years imprisonment; and
(4) As alleged in the respective charging documents therein,
the burglaries in these prior burglary convictions all
3. Given defendant’s stipulation in the preceding
paragraph, defendant is an “armed career
criminal” within the meaning of Guideline 4B1.4 of the
United States Sentencing Commission Guidelines with respect
to Counts 1 and 3 of the Indictment.
Doc. No. 37, Plea Agreement at 3-4.
the ACCA, if a defendant is convicted of a firearms offense
and has three or more prior convictions of “a violent
felony or a serious drug offense, or both, ” the
defendant is subject to a mandatory minimum fifteen-year
sentence. 18 U.S.C. § 924(e)(1). The ACCA defines
“violent felony” as follows:
(B) the term “violent felony” means any crime
punishable by imprisonment for a term exceeding one year . .
. that --
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another[.]
18 U.S.C. § 924(e)(2). The first clause in §
924(e)(2)(B)(ii) (“is burglary, arson, or extortion,
involves use of explosives”) is referred to as the
“enumerated offenses clause, ” while the second
clause (“or otherwise involves conduct that presents a
serious potential risk of physical injury to another”)
is referred to as the “residual clause.”
the stipulations in the Plea Agreement, the court sentenced
Defendant on August 20, 2007 as an armed career criminal to
132 months imprisonment. Defendant did not appeal the August
27, 2007 Judgment, and it became final for purposes of 28
U.S.C. § 2255(f)(1) when the appeal period
expired. See, e.g., United
States v. Schwartz, 274 F.3d 1220, 1223 (9th Cir. 2001)
(holding that a judgment becomes final and the limitations
period under § 2255(f)(1) begins to run “upon the
expiration of the time during which [he or] she could have
sought review by direct appeal”).
existing law at the time that Defendant was sentenced in
August 2007, Defendant’s prior burglary convictions
under Hawaii Revised Statutes (“HRS”) §
708-810 could have been considered to be § 924(e)(2)
“violent felonies” under either (or both) the
enumerated offense clause or the residual clause when
applying the categorical/modified categorical approach
derived from Taylor v. United States, 495 U.S. 575
(1990), and Shepard v. United States, 544 U.S. 13
(2005). See, e.g., United States v. Grisel,
488 F.3d 844, 851-52 & n.8 (9th Cir. 2007) (en banc)
(remanding for application of modified categorical approach
after determining that Oregon burglary statute was not a
categorical generic burglary, and noting that the residual
clause might otherwise apply) (decided June 5, 2007, shortly
before Defendant’s sentencing).
Defendant’s sentence became final, the Supreme Court
issued the two opinions central to Defendant’s §
2255 Motion. On June 20, 2013, the Supreme Court decided
Descamps, “which more clearly than earlier
cases limited the extent to which courts may satisfy the
modified categorical approach by looking at the
'facts’ of prior convictions.” United
States v. Marcia-Acosta, 780 F.3d 1244, 1254 (9th Cir.
2015). Descamps “clarified that the modified
categorical approach serves a 'limited function, '
'effectuating the categorical analysis when a divisible
statute, listing potential offense elements in the
alternative, renders opaque which element played a part in
the defendant’s [prior] conviction.’”
Marcia-Acosta, 780 F.3d at 1249 (quoting
Descamps, 133 S.Ct. at 2283)).
“Divisibility” is a key question “because a
conviction under an indivisible, overbroad statute can
never serve as a predicate [ACCA] offense.”
Medina-Lara v. Holder, 771 F.3d 1106, 1112 (9th Cir.
2014) (citing Descamps, 133 S.Ct. at 2286). Among
other matters, Descamps “resolve[d] a Circuit
split on whether the modified categorical approach applies to
statutes . . . that contain a single, 'indivisible’
set of elements sweeping more broadly than the corresponding
generic offense . . . hold[ing] that it does not.” 133
S.Ct. at 2283 (footnote omitted).
June 26, 2015, the Supreme Court decided Johnson,
which invalidated the ACCA’s residual clause as
unconstitutionally vague. 135 S.Ct. at 2557-58.
Johnson reasoned that because the residual clause
“both denies fair notice to defendants and invites
arbitrary enforcement by judges, ” id. at
2557, “imposing an increased sentence under the
residual cause . . . violates the Constitution’s
guarantee of due process.” Id. at 2563.
Johnson, Defendant filed his § 2255 Motion on
February 4, 2016, seeking re-sentencing, arguing that his
original sentence was based on an improper determination that
he is an armed career criminal under the ACCA.Specifically, Defendant contends
that, absent the residual clause, his first-degree burglary
convictions under HRS § 708-810 do not qualify as
predicate violent felonies under the ACCA. See Doc.
No. 82, Def.’s Mem. at 12. Defendant seeks to apply ...