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Beach v. United States

United States District Court, W.D. Washington, Seattle

January 24, 2017

SHAD M. BEACH, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          HONORABLE RICHARD A. JONES, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         This 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 Beach's motion.

         II. BACKGROUND

         On 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.

         On June 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.

         On 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.

         On June 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.

         III. DISCUSSION

         a. 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.

         b. Beach's Claims Are Not Procedurally Defaulted

         The 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.

         “A 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).

         The 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 ...


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