United States District Court, D. Oregon
WAYNE NEVILLE MORRIS, FCI Sheridan, Sheridan, Oregon, Petitioner, Pro Se.
S. AMANDA MARSHALL, United States Attorney, District of Oregon NATALIE K. WIGHT, Assistant U.S. Attorney, Portland, Oregon, Attorneys for Respondent
OPINION AND ORDER
ANN L. AIKEN, District Judge.
Petitioner, an inmate at FCI Sheridan, brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2241. For the reasons set forth below, the petition is dismissed, without prejudice, for lack of jurisdiction.
On April 1, 1999, petitioner was indicted for armed robbery and brandishing a firearm during the robbery. Petitioner summarizes the facts of the robbery as follows:
On March 26, 1999, the petitioner drove his brother (co-defendant) to Key Bank in Shoreline, Washington, just outside of Seattle. While [petitioner] waited outside in a "little nook, " petitioner's co-defendant went running into the bank, gun held out. Pointing his gun at a teller, the co-defendant put a blue gym bag on the teller's counter and demanded that the teller "put the money in the bag." He left the bank with over $30, 000.
The co-defendant ran across the street and got back in the car with the petitioner. The co-defendant shot at a police officer as they were sitting in traffic. While the Petitioner [was] driving, the two led the police on an extended car chase. During the chase, the co-defendant shot a FBI agent Roberta Burroughs. Just before the chase ended, the co-defendant fired shots again at a police officer. The petitioner finally stopped when he was shot and the car was disabled.
Pet's Memo. in Support of Habeas Petition (#3) at 1; U.S. v. Morris, 43 Fed.Appx. 150, 152 (9th Cir. 2002).
On October 27, 1999, a second superseding indictment was issued charging petitioner as follows: (1) conspiracy to commit bank robbery and to use and carry a firearm during and in relation to a crime of violence; (2) armed bank robbery; (3) brandishing a firearm during and in relation the bank robbery; (4) assault of a federal officer; and (5) carrying and discharge of a firearm during and in relation to an assault of a federal officer. Id. at 152-53; Resp.'s Response (#15), Exh. 2. As to counts 2-5, petitioner was charged as an aider and abetter. See 18 U.S.C. § 2.
On December 10, 1999, petitioner was convicted of all five counts. Resp.'s Response, Exh. 7. Petitioner was sentenced to a 528-month term of imprisonment, which included a 10-year sentence on count 3 (the mandatory minimum sentence for the discharge of a firearm in violation of 18 U.S.C. § 924(c)(1)(A)(iii)). Petitioner appealed his conviction, arguing, inter alia, that his conviction on count 3, for aiding and abetting the use of a firearm during the bank robbery, must be vacated because the district court's imposition of the mandatory minimum sentence for discharging a firearm under 18 U.S.C. § 924(c)(1)(A)(iii) did not conform to the second superseding indictment charging him with brandishing the firearm in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Morris, 43 Fed.Appx. at 155. The Ninth Circuit rejected this argument based upon Harris v. United States, 536 U.S. 545 (2002), the controlling case law at the time:
[T]he variance between the indictment and proof at trial did not abrogate Morris's Fifth Amendment rights, because the variance did not affect a crime element of § 924(c). Instead, "brandishing and discharging [are] sentencing factors to be found by the judge, not offense elements to be found by the jury." Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 2414, 153 L.Ed.2d 524 (2002). These factors therefore "need not be alleged in the indictment...." Id. at 2420. The second superseding indictment's allegation of "brandishment" was mere surplusage.
Because the discharge of a firearm is a sentencing factor, not a crime element, its omission from the second superseding indictment did not abrogate Morris's Fifth Amendment rights. The variance between the indictment and proof at trial was not plainly erroneous.
Morris, 42 Fed.Appx. at 156 (footnotes omitted). The Ninth Circuit also concluded that a rational jury could conclude that petitioner aided and abetted his brother's brandishing or discharge of a firearm during the flight from the bank robbery, ...