Opinion
Case No. 12-cr-574-PJH-4
08-06-2020
UNITED STATES OF AMERICA, Plaintiff, v. JERMAINE EARNEST, Defendant/Movant.
ORDER HOLDING § 2255 MOTION IN ABEYANCE
Re: Dkt. 504
Before the court is the represented motion of defendant Jermaine Earnest for an order under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence on the ground that his sentence has been rendered invalid by the Supreme Court's holding in United States v. Davis, 139 S. Ct. 2319 (2019), that the residual clause of 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague. Dkt. 504. Earnest asserts two grounds under Davis to challenge his convictions for use of a firearm in furtherance of a crime of violence causing death in violation of 18 U.S.C. § 924(j)(1) and for use of a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A):
(1) with the residual clause of § 924(c)(3)(B) stricken by Davis, the predicate offense of murder under California Penal Code § 187 is not a categorical crime of violence as defined by the elements clause of § 924(c)(3)(A) because "the use, attempted use, or threatened use of physical force against the person or property of another" is not a required element under California law; and
(2) under California law, murder does not qualify as a crime of violence under § 924(c)(3)(A) because Penal Code § 187 encompasses the reckless killing of another person and recklessness does not satisfy the requisite intent to use force.
These claims are cognizable under 28 U.S.C. § 2255. However, the second ground asserted by Earnest, that recklessness is not sufficient mens rea to satisfy the definition of a crime of violence under the elements clause of § 924(c)(3)(A), is an issue of law currently pending before the Ninth Circuit on a petition for panel rehearing in United States v. Begay, 934 F.3d 1033 (9th Cir. 2019), reh'g held in abeyance, 2019 WL 7900329 (9th Cir. Dec. 5, 2019). In Begay, a divided panel held that second-degree murder does not constitute a crime of violence under the elements clause of 18 U.S.C. § 924(c)(3)(A) because it can be committed recklessly. Id. at 1038-41. The government filed a petition for panel rehearing in Begay which the court ordered to be held in abeyance pending issuance of a decision by the court sitting en banc in United States v. Orona, No. 17-17508 (9th Cir.), petition for reh'g en banc granted Nov. 18, 2019, stay issued Apr. 1, 2020. The Ninth Circuit has since stayed the en banc proceedings in Orona pending issuance of a decision by the Supreme Court in United States v. Borden, No. 19-5410, cert. granted Mar. 2, 2020 (whether a criminal offense that can be committed with a mens rea of recklessness can qualify as a "violent felony" under the Armed Career Criminal Act, 18 U.S.C. 924(e)).
In light of the unsettled issue of law presented in Earnest's § 2255 motion that is currently pending before the Ninth Circuit and the Supreme Court, the court ORDERS that the § 2255 motion filed by Earnest is hereby HELD IN ABEYANCE and STAYS these § 2255 proceedings pending issuance of a decision in Borden, Orona or Begay. The court further ORDERS that upon issuance of a decision in Borden, Orona or Begay, the government shall file a status report to notify the court and propose a briefing schedule on the § 2255 motion after conferring with appointed counsel.
IT IS SO ORDERED. Dated: August 6, 2020
/s/ Phyllis J. Hamilton
PHYLLIS J. HAMILTON
United States District Judge