Lee v. USA

          ORDER

          JAMES A. TEILTRORG SENIOR UNITED STATES DISTRICT JUDGE.

         I. Claim in this case

          Movant has summarized the claim in this case as follows: “Mr. Lee is before the Court challenging his conviction under 18 U.S.C. § 924(c) for discharging a firearm during and in relation to a crime of violence under Johnson v. United States, 135 S.Ct. 2551 (2015), on the ground that the predicate crime in his case, second-degree murder in violation of 18 U.S.C. § 1111, is not a ‘crime of violence' under § 924(c)(3) in the wake of Johnson.” (Doc. 29 at 1).

         II. Procedural History

         Pending before the Court is the second Report and Recommendation (R&R) issued by the Magistrate Judge recommending that the Motion to Vacate, Set Aside or Correct Sentence (“Motion”) in this case be denied. After the first R&R was issued, the Supreme Court decided Class v. United States, 138 S.Ct. 798 (2018). After the second R&R was issued, the Ninth Circuit Court of Appeals decided United States v. Blackstone, No. 17-55023, 2018 WL 4344096 (9th Cir. Sept. 12, 2018).

         In the first R&R the Magistrate Judge recommended that this Court find that Movant has waived his right to bring this Motion via his plea agreement. (Doc. 23 at 6-9). Following the supplemental briefing on Class, this Court (mistakenly) believed that the parties agreed that Petitioner's waiver did not preclude his Motion in this case. (Doc. 31). This Court re-referred this case to the Magistrate Judge for a second R&R. In preparing the second R&R, the Magistrate Judge (correctly) determined that the parties were not in agreement on whether Class impacted Respondent's waiver arguments. Thus, in the second R&R, the Magistrate Judge again recommends that this Court find that Movant waived his ability to bring this motion via his plea agreement, notwithstanding Class. (Doc. 35 at 9-16). Movant objected to this recommendation.

         In the second R&R, the Magistrate Judge went on, in the event this Court disagreed regarding the waiver bar, to analyze Movant's Motion. In that analysis, the R&R recommended that this Court find the Motion was timely. However, following the Ninth Circuit Court of Appeals decision in Blackstone, the Government argues that the Motion is not timely.^[1] Movant suggests that he will argue that Blackstone is wrongly decided on appeal, and also argues that he is subject to an exception from Blackstone's conclusion.

         Assuming neither Movant's waiver, nor the time bar, prevent the Court from reaching the merits of the Motion, the second R&R ultimately concludes that Movant should be given relief as to his conviction on Count Two. (Doc. 35 at 48). The Government objects to this recommendation. (Doc. 39).

         III. Review of R&R

         This Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9^th Cir. 2003) (en banc) (emphasis in original). Both Movant and the Government filed objections to the R&R. (Docs. 36 and 39). Further, at the Court's request, each filed a supplemental brief. (Docs. 41 and 42).

         IV. Motion

         A. Waiver

         As discussed above, the first issue this Court must address is whether Movant waived his ability to bring this Motion via his plea agreement. The R&R concludes that Movant expressly waived his ability to bring this Motion. (Doc. 35 at 9-16). Specifically, the R&R notes that the plea agreement included the following: “The defendant further waives…(3) any right to collaterally attack defendant's conviction and sentence under Title 28, United States Code, Section 2255.” (Doc. 35 at 9).

         Movant argues that the type of § 2255 motion he is bringing is non-waivable; thus, even the express waiver language of his plea agreement would not bar this Motion. (Doc. 36). Specifically, Movant argues: 1) a guilty plea does not implicitly waive any claim that goes to the government's ability to bring charges in the first instance; and 2) a ...