United States District Court, D. Arizona
G. Campbell United States District Judge.
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.
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)
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.
September 6, 2016, the government sought a stay of these
proceedings pending the Supreme Court's decision in
Sessions 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.
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.
Standard of Review.
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. §
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 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).
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 ...