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Percy v. USA

United States District Court, D. Arizona

July 3, 2017

Shawn Tyrone Percy, Petitioner,
v.
USA, Respondent.

          ORDER

          David G. Campbell United States District Judge.

         Magistrate Judge Deborah M. Fine has issued a Report and Recommendation that the Court deny Petitioner's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 1). Doc. 26 (“R&R”). Petitioner filed an objection (Doc. 27) and the government replied (Doc. 28). The Court will adopt the R&R.

         I. Background.

         On October 7, 1999, Petitioner Shawn Tyler Percy was found guilty by a jury of second degree murder in violation of 18 U.S.C. § 1111, and discharging a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(iii). Doc. 1, ¶ 9. Petitioner was sentenced to 280 months in prison, consisting of 160 months on the murder count and 120 months on the § 924(c) count. Id.

         On June 26, 2016, Petitioner, through counsel, filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. Id. Petitioner asserts that his sentence is unconstitutional under Johnson v. United States, 135 S.Ct. 2551 (2015). Id. In Johnson, the Supreme Court held that the residual clause in the definition of a “violent felony” in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B) (“ACCA”), is unconstitutionally vague. 135 S.Ct. at 2557. Petitioner argues that his sentence under 18 U.S.C. § 924(c)(1)(A)(iii) is likewise unconstitutional. Doc. 1. Petitioner's sentence expiration date on the second degree murder charge alone (not considering the § 924(c) sentence) was July 7, 2016. Doc. 11.

         On September 6, 2016, the government sought a stay of these proceedings pending the Supreme Court's decision in Sessions[1] v. Dimaya, No. 15-1498 (cert. granted Sept. 29, 2016), and the Ninth Circuit's decision in United States v. Begay, No. 14-10080. Doc. 5. On December 12, 2016, the Court denied the stay request. Doc. 18.

         The government subsequently filed a limited answer to Petitioner's motion, arguing that: (1) the motion is untimely, and (2) the motion is procedurally barred. Doc. 20. On April 13, 2017, Judge Fine issued an R&R concluding that Petitioner's motion is not untimely but is procedurally barred, and recommending that the Court deny the motion. Doc. 26.

         II. Standard of Review.

         The Court must undertake de novo review of those portions of the R&R to which specific objections are made. The Court may accept, reject, or modify, in whole or in part, the findings or recommendations. Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1).

         III. Analysis.

         Petitioner argues that his motion is not procedurally barred, and asks the Court to grant his motion or grant Petitioner a certificate of appealability. Doc. 27.

         A. Procedural Default.

         “Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent.” Bousley v. U.S., 523 U.S. 614, 622 (1998) (internal quotation marks and citations omitted).

         Cause may be shown when a claim is “novel.” See Reed v. Ross, 468 U.S. 1, 15 (1984). A claim can be considered novel where a Supreme Court decision: (1) “explicitly overrule[s] one of [the Court's] precedents”; (2) “may overtur[n] a longstanding and widespread practice to which th[e] Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved”; or (3) when the Court “‘disapprove[s] a practice th[e] Court arguably has sanctioned in prior cases.'” Id. at 17. In Johnson, the Supreme Court expressly overruled its own precedent: “We hold that imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the ...


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