United States District Court, W.D. Washington, Seattle
SHAD M. BEACH, Petitioner,
UNITED STATES OF AMERICA, Respondent.
HONORABLE RICHARD A. JONES, UNITED STATES DISTRICT JUDGE
matter comes before the Court on Petitioner Shad M.
Beach's Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct a Sentence By a Person in Federal Custody.
Dkt. # 1. For the reasons that follow, the Court GRANTS
November 19, 2012, Petitioner Shad M. Beach pleaded guilty to
one count of being a felon in possession of a firearm. At
sentencing, the Court determined that Beach qualifies as a
career offender under § 2K2.1(a)(2) of the United States
Sentencing Guidelines (“U.S.S.G.”) because he had
previously been convicted of a “crime of violence,
” a term defined by reference to U.S.S.G. §
4B1.2(a). His previous convictions that the Court considered
crimes of violence under the enhancement were for
“attempting to elude.” PSR ¶¶ 12, 33,
41. Based on this determination, the Court set Beach's
total offense level at 25, resulting in a guideline range of
110 to 137 months of incarceration. Had he not been sentenced
as a career offender, his guideline range would have been 41
to 51 months. Dkt. 6 at 2. After applying the sentencing
factors under 18 U.S.C. § 3553(a), the Court sentenced
Beach to a term of 72 months. Id.
26, 2015, the Supreme Court decided Johnson v. United
States, 135 S.Ct. 2551 (2015). The Court held that the
residual clause of the Armed Career Criminal Act
(“ACCA”) violates the Constitution's
guarantee of due process because it is unconstitutionally
vague. Id. at 2557. The residual clause defines the
term “violent felony” to include any crime that
“otherwise involves conduct that presents a serious
potential risk of physical injury to another.” 18
U.S.C. § 924(e)(2)(B)(ii). Section 2K2.1(a)(2), by
reference to § 4B1.2, uses similar language to define
the term “crime of violence.” U.S.S.G. §
2K2.1, cmt. n.1.
April 18, 2016, the Supreme Court decided Welch v. United
States, 136 S.Ct. 1257 (2016). In Welch, the
Court held that its decision in Johnson invalidating
the ACCA's residual clause “announced a substantive
rule that has retroactive effect in cases on collateral
review.” Id. at 1268.
7, 2016, Beach filed a petition under 28 U.S.C. § 2255
challenging the Court's determination that he qualifies
as a career offender under § 2K2.1(a)(2). Dkt. 1. Beach
contends that, based on the Supreme Court's holding in
Johnson, his prior convictions do not qualify as
crimes of violence, and thus, that it was improper to
sentence him as a career offender. Id. The
Government opposes the motion. Dkt. # 9.
Johnson Applies Retroactively The Government
contends that the Supreme Court's decision in
Johnson does not apply retroactively to a defendant
seeking to challenge a USSG calculation on collateral review.
The Court recently addressed this issue and found that
Johnson does apply retroactively to such cases.
See Haffner v. United States, No. C16-448-RAJ, 2016
WL 6897812, at *3-4 (W.D. Wash. Nov. 23, 2016); see also
Gibson v. United States, No. C15-5737 BHS, 2016 WL
3349350, at *2 (W.D. Wash. June 15, 2016); Pressley v.
United States, No. C16-510RSL, 2016 WL 4440672, at *2
(W.D. Wash. Aug. 11, 2016). The Court declines to deviate
from its previous holding. Johnson applies
retroactively to Beach's claim.
Beach's Claims Are Not Procedurally
Government argues that Beach's claims are procedurally
defaulted because he did not argue on direct appeal that his
previous convictions are not crimes of violence. Beach does
not dispute that he failed to raise this issue on direct
appeal; instead, he argues that his failure to do so is
excused by cause and prejudice.
prisoner may obtain federal review of a defaulted claim by
showing cause for the default and prejudice from a violation
of federal law.” Trevino v. Thaler, 133 S.Ct.
1911, 1917 (2013) (quoting Martinez v. Ryan, 132
S.Ct. 1309, 1316 (2012)). A petitioner may establish cause by
showing that the constitutional claim at issue “is so
novel that its legal basis [was] not reasonably available to
counsel” at the time of direct appeal. Reed v.
Ross, 468 U.S. 1, 16 (1984).
Court, having rejected an identical argument by the
Government in a separate matter, finds that Beach's
Johnson argument was not reasonably available to him
on direct appeal. See Haffner v. United States, No.
C16-448-RAJ, 2016 WL 6897812, at *4 (W.D. Wash. Nov. 23,
2016) (“Petitioner has demonstrated that the
Johnson decision specifically overruled existing
precedent . . ., overturned a longstanding and widespread
practice to which a near-unanimous body of lower court
authority had adhered and disapproved a practice which the
Supreme Court itself had previously sanctioned . . . . Under