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United States v. Singleton

United States District Court, D. Oregon, Portland Division

January 31, 2018



          Ann Aiken United States District Judge.

         In 2009, defendant Johnathan Darrell Singleton pleaded guilty to bank robbery. He was sentenced to 151 months' imprisonment, to be followed by three years' supervised release. The Court based that sentence, in part, on the parties' stipulation that defendant was a career offender under the United States Sentencing Guidelines ("the Guidelines"). Defendant's career offender designation rested on a determination that his prior convictions under Oregon law-for Assault II, Robbery III, and Burglary I-were crimes of violence within the meaning of a provision of the Guidelines known as the residual clause.[1] The career offender designation substantially increased defendant's advisory Guidelines range. With the career offender designation, the range was 151 to 188 months; without the designation, the range would have dropped to 70 to 87 months.

         The Armed Career Criminal Act ("ACCA") also contains a residual clause. Johnson v. United States, 135 S.Ct. 2551, 2555-56 (2015). On June 26, 2015, the Supreme Court held that the ACCA's residual clause was unconstitutionally vague. Id. at 2557. Within a year of that decision, defendant-like many other incarcerated individuals in this district and across the nation-filed a motion to vacate or correct his sentence under 28 U.S.C. § 2255. In his initial motion, defendant argued that Johnson''$ holding logically extended to the Guidelines' textually-identical residual clause. He contended that his sentence had been imposed in violation of the Due Process Clause because, without the residual clause, his prior convictions for robbery and burglary would not have qualified as predicate offenses and his Guidelines range would not have been enhanced by the career offender designation. In March 2017, the Supreme Court held that the advisory Guidelines are immune to vagueness challenges. See Beckies v. United States, 137 S.Ct, 886, 897 (2017). After Beckies, the arguments defendant initially advanced in support of his 2255 motion could not succeed.

         Following Beckies, defendant filed a supplemental memorandum in support of his 2255 motion. In that memorandum, he pivoted to a new argument: that, in view of the Supreme Court's announcement that the ACCA's residual clause is "a black hole of confusion and uncertainty that frustrates any effort to impart some sense of order and direction[, ]" Johnson, 135 S.Ct. at 2562 (internal quotation marks omitted), use of the Guidelines' residual clause to nearly double his advisoiy Guidelines range resulted in a sentence that is disproportionately and arbitrarily harsh, in violation of the Fifth and Eighth Amendments.

         The government does not respond to the merits of defendant's supplemental brief. Instead, it contends that this Court lacks jurisdiction to consider those arguments because defendant's 2255 motion is untimely.

         Motions under 28 U.S.C. § 2255 are subject to a one-year limitations period. That period runs from the latest of:

(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f). Neither subsection (2) nor (4) is at issue here, and defendant's judgment of conviction became final eight years ago. Accordingly, the parties agree that the petition is untimely unless subsection (3) applies. They further agree that in order for that subsection to apply, the right defendant asserts in his 2255 motion must be the same right the Supreme Court "newly recognized" in Johnson and "made retroactively applicable" on collateral review in Welch v. United States, 136 S.Ct. 1257 (2016).

         The Ninth Circuit has not established a test for determining the scope of a newly recognized right for the purposes of § 2255(f)(3). In a recent District of Oregon decision, Judge McShane thoroughly reviewed the case law on this question. See United States v. Patrick, 2017 WL 4683929, *3 (D. Or. Oct. 18, 2017). In Patrick, the defendant had been sentenced before the Supreme Court decided United States v. Booker, 543 U.S. 220 (2005). In his 2255 motion, the defendant argued that although Beckles foreclosed relief on vagueness grounds for those sentenced according to the advisory (post-Booker) Guidelines, Johnson recognized a right applicable in mandatory Guidelines cases. The government responded that the petition was untimely because, although Johnson might have laid the foundation for an argument regarding the mandatory Guidelines, it did not recognize a right applicable in mandatory Guidelines cases.

         In Patrick, Judge McShane found that most courts use one of two methods to identify the scope of the right recognized in a particular Supreme Court case. Some courts limit the newly recognized right to the "narrow rule announced" in the case, i.e., the holding. 2017 WL 4683929 at *3. Other courts take a broader approach, wherein the newly recognized right flows from "the principles announced in a Supreme Court case" and is more analogous to the decision's reasoning. Id. (emphasis omitted). Patrick also discussed a "potential third approach to defining what qualifies as a newly recognized right." 2017 WL 4683929 at *5. That approach-which defendant here also employs-is to define the phrase "newly recognized right" to mean the same thing as "new rule" under the retroactivity analysis of Teagae v. Lane, 489 U.S. 288 (1989). Id. That would mean that a right asserted in a 2255 petition is the same right newly recognized in a Supreme Court decision if that decision requires the district court to grant the motion. See Ezell v. United States, 778 F.3d 762, 766 (9th Cir. 2015) (stating that a case recognizes a new rule for Teague purposes if the result is "not dictated by precedent") (emphasis omitted). Judge McShane adopted the first, narrow approach and denied the defendant's motion. Id. at *4.

         I find it unnecessary to decide which approach is correct because, in this case, defendant's motion is untimely under all three approaches. It is clearest that defendant's motion must be dismissed under the first approach because defendant asserts a right different than the narrow right announced in Johnson's holding, which concerned the ACCA's residual clause and the vagueness doctrine. Application of the third approach does not present a very difficult question, either, Johnson did not discuss the Eighth Amendment, the advisory Guidelines, or how either one might interact with the Fifth Amendment's general prohibition on disproportionate or arbitrary punishments. Johnson's statements about the hopeless indeterminacy of the residual clause establish a solid starting point for the merits of defendant's arguments, but I cannot conclude that Johnson would require me to grant defendant's motion; there are simply too many logical leaps between Johnson and the result defendant seeks. Granting defendant's ...

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