United States District Court, E.D. Washington
ORDER GRANTING JOINT MOTION FOR HABEAS CORPUS RELIEF
UNDER 28 U.S.C. § 2255
F. SHEA Senior United States District Judge
the Court is a Joint Motion for Habeas Corpus Relief Under 28
U.S.C. § 2255, ECF No. 554. The United States
Attorney's Office and Defendant John L. Calvert, through
his attorney, Alison K. Guernsey, agree that because of the
statutory language in effect at the time of his offense, Mr.
Calvert is “actually innocent” of the material
fact that enhanced his sentence for Count 3. The parties
therefore ask the Court to correct this “clear
constitutional error” by immediately entering an
amended judgment. For the reasons articulated below, the
Court grants the parties' motion.
parties' motion - and the Ex Post Clause violation it
seeks to remedy - comes before this Court via a long and
March 20, 2001, a jury convicted Mr. Calvert on four counts:
(1) Conspiracy to Retaliate Against a Witness, in violation
of 18 U.S.C. § 371; (2) Retaliating Against a Witness,
in violation of 18 U.S.C. § 1513(b); (3) Use of a
Firearm During a Crime of Violence, in violation of 18 U.S.C.
§ 924(c)(1)(A); and (4) Felon in Possession of a
Firearm, in violation of 18 U.S.C. § 922(g). ECF No.
225. On July 16, 2001, the Court sentenced Mr. Calvert to a
total term of 330 months' imprisonment: 60 months'
imprisonment on Count 1; 120 months' imprisonment on
Count 2, concurrent with Count 1; 120 months'
imprisonment on Count 4, 90 months of which to run
consecutive to Counts 1 and 2; and 120 months'
imprisonment on Count 3, consecutive to all other counts. ECF
Calvert appealed his conviction and sentence, ECF No. 250,
but the Ninth Circuit Court of Appeals rejected the
Defendant's arguments and affirmed his conviction on all
counts. See United States v. Calvert, 48 F.App'x
634 (9th Cir. 2002) (unpublished); ECF No. 298. However, the
Ninth Circuit remanded the case for resentencing because it
held that this Court had improperly applied a 4-level
increase under § 2K2.4 of the U.S. Sentencing
February 12, 2003, Mr. Calvert was resentenced to a total
term of 270 months' imprisonment: 60 months on Count 1;
90 months on Counts 2 and 4, concurrent with each other but
consecutive to Count 1; and 120 months on Count 3,
consecutive to all other counts. ECF No. 317.
Calvert again appealed his sentence. ECF No. 318. The Ninth
Circuit held that his sentence exceeded the “total
punishment” as calculated under U.S.S.G. § 5G1.2
and remanded the case for resentencing. United States v.
Calvert, 75 F.App'x 663 (9th Cir. 2003)
(unpublished). On August 19, 2004, this Court resentenced Mr.
Calvert to a total term of 207 months' imprisonment: 60
months on Count 1; 87 months on Counts 2 and 4, concurrent to
each other as well as Count 1; and 120 months on Count 3,
consecutive to all other counts. ECF No. 350.
November 2005, after an appeal by the Government, ECF No.
354, and in light of United States v. Booker, 543
U.S. 200 (2005), the Ninth Circuit remanded yet again for
resentencing because this Court had indicated it would have
imposed a greater sentence if it were not bound by the
Guidelines. See United States v. Calvert, 142
F.App'x 969 (9th Cir. 2005) (unpublished). On November
30, 2006, this Court resentenced Mr. Calvert for a third
time, for a total term of 270 months' imprisonment: 60
months on Count 1; 90 months on Counts 2 and 4 to run
concurrent with each other but consecutive with Count 1; and
120 months on Count 3 to run consecutive to all other counts.
ECF No. 433. Mr. Calvert appealed his sentence, ECF No. 435,
but the Ninth Circuit affirmed the judgment. See United
States v. Calvert, 511 F.3d 1237 (9th Cir. 2008).
September 18, 2008, Mr. Calvert filed a Motion under 28
U.S.C. § 2255, in which he alleged several grounds for
relief, including an unrelated ex post facto argument
relating to the Guidelines, but did not raise the ex post
facto issue currently before the Court. See ECF No.
455. On February 27, 2009, the Court entered an order denying
Mr. Calvert's § 2255 motion. ECF No. 465. Mr.
Calvert sought to appeal but was denied a certificate of
appealability. ECF Nos. 467 & 473.
16, 2013, Mr. Calvert filed a motion labeled as a petition
for a writ of habeas corpus pursuant to 28 U.S.C. §
2241, ECF No. 483, but the Court construed it as a §
2255 motion and denied it as untimely.
ECF No. 484. That motion likewise did not raise the ex post
facto issue that the Court now addresses. See ECF
Nos. 483 & 484. Mr. Calvert appealed, ECF No. 488, but
then voluntarily dismissed his appeal, ECF No. 503.
Calvert filed additional documents attacking his sentence,
all of which were denied. His filings included a letter that
this Court construed as a § 2241 petition, see
ECF No. 517, as well as two motions for a sentence reduction
under § 3582(c) and Guidelines Amendment 782, ECF Nos.
521 & 525. None of these additional documents raised the
ex past facto violation at issue here.
October 22, 2015, the Court entered a Fifth Amended Judgment
clarifying that the Court intended that Mr. Calvert receive
credit for the time he spent in custody prior to sentencing
in this federal matter as well as in the related state-court