United States District Court, D. Arizona
REPORT AND RECOMMENDATION
MARK E. ASPEY, Magistrate Judge.
TO THE HONORABLE NEIL V. WAKE:
On August 16, 2013, Mr. Rayford Terrell ("Movant"), filed a pro se Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, which was dismissed with leave to amend. Movant filed an amended motion on December 16, 2013. See Doc. 4. On June 3, 2014, Respondent filed an Opposition to Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 ("Response") (Doc. 6). Movant docketed a reply (Doc. 7) to the response to his motion on June 24, 2014.
I Procedural History
A grand jury indictment returned September 14, 2005, charged Movant (and one co-defendant) with one count of being a felon in possession of a firearm and also alleged forfeiture, with regard to a crime allegedly committed June 9, 2005. See Criminal Doc. 3. A superseding indictment returned by a federal grand jury on September 20, 2006, charged Movant with one count of being a "Felon in Possession of a Firearm/Armed Career Criminal, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e)", and also alleged forfeiture. Criminal Doc. 57. On November 28, 2007, at the conclusion of a two-day trial conducted by the Honorable Frederick J. Martone, the jury found Movant guilty as charged.
Pursuant to this conviction, in an order docketed December 10, 2008, the Court sentenced Movant to a term of 188 months imprisonment followed by a term of five years of supervised release. See Criminal Doc. 236. The Court further found Movant had forfeited "any interest that he has in the FEG.380 caliber handgun serial number L046344 to the United States of America." Id.
Movant took a timely direct appeal of his conviction and sentence. In a decision entered February 2, 2010, the Ninth Circuit Court of Appeals affirmed Movant's conviction and sentence. The Ninth Circuit determined:
The district court enhanced Terrell's sentence under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. §§ 921-31, which raises the mandatory minimum sentence for convicted felons in possession of a firearm who have "three previous convictions... for a violent felony." 18 U.S.C. § 924(e)(1). Terrell argues that the prior convictions relied upon for the enhancement-sexual assault under Arizona law, second-degree burglary under Arizona law, and second-degree burglary under Missouri law-do not qualify as "violent felon[ies]" under the ACCA. We hold that all of these prior offenses fit categorically within the ACCA's residual clause in that they "involve[ ] conduct that presents a serious potential risk of physical injury to another." Id . § 924(e)(2)(B)(ii). Thus, we affirm the district court's decision to enhance Terrell's sentence.
Criminal Doc. 268, Attach 2.
Petitioner sought a rehearing en banc, which relief was denied on August 13, 2010, with four judges dissenting from the denial of rehearing en banc. The dissent to the denial of a rehearing en banc opined:
Judge M. SMITH, with whom Chief Judge KOZINSKI and Judges PREGERSON and REINHARDT join, dissenting from the denial of rehearing en banc:
Just one year ago, Chief Judge Kozinski presciently observed that we had on our hands "a train wreck in the making." United States v. Mayer , 560 F.3d 948, 951 (9th Cir. 2009) (Kozinski, C.J., dissenting from the denial of rehearing en banc). For years we had become accustomed to applying uniformly the Taylor categorical approach in our immigration and criminal sentencing jurisprudence. Mayer ended that practice. It developed a unique categorical approach for cases involving the Armed Career Criminal Act (ACCA) and the Sentencing Guidelines career offender provision. It also expanded those provisions' "residual clause" to cover nearly any crime. Chief Judge Kozinski warned of the growing number of casualties that would result in our circuit following our decision in Mayer. See id. at 954. Add Rayford Terrell as the next name on that list, and expect it to grow after the panel's decision here. In this case the panel holds that we can find a categorical match-and apply a substantial sentence enhancement- without reference to a single state case or other objective measure of whether the state offense falls within the definition of the generic federal offense that Congress intended to be the basis for enhancement. Apparently, a panel's gut instinct is all that matters. It also holds that a state offense that lacks one of the generic crime's key elements-key because it makes the generic offense inherently violent-is "almost always" the same offense as the corresponding generic crime. As a result, we have officially abandoned the categorical approach in "residual clause" cases. Because I believe the panel's approach is contrary to the intent of Congress and Supreme Court case law, I respectfully dissent from the court's denial of rehearing en banc.
Criminal Doc. 268, Attach 1.
Movant sought a writ of certiorari, which petition was denied by the United States ...