United States v. Dade, No. 19-35172 (9th Cir. 2021)
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The Ninth Circuit affirmed the district court's denial of defendant's 28 U.S.C. 2255 motion to vacate, set aside, or correct his sentence. Defendant challenges his convictions for interstate domestic violence, in violation of 18 U.S.C. 2261(a)(1), and use of a firearm in relation to a violent crime, in violation of 18 U.S.C. 924(c), arguing that the predicate offenses underlying these convictions no longer qualify as categorical "crimes of violence" in light of Sessions v. Dimaya, 138 S. Ct. 1204 (2018). Dimaya held that the residual-clause definition of "crime of violence" in 18 U.S.C. 16(b) is unconstitutionally vague.
The panel agreed with the government that defendant has not demonstrated that he was convicted and sentenced in violation of Dimaya and therefore fails to satisfy the gatekeeping provision set forth in 28 U.S.C. 2255(h)(2). The panel explained that the record and relevant background legal environment confirm that the district court's determination that Idaho assault and battery qualify as crimes of violence did not rest on section 16(b). Because defendant's section 2261 and section 924(c) convictions did not rely on section 16(b), the panel concluded that defendant's challenges to those convictions do not "rely on" Dimaya. Therefore, defendant's second section 2255 motion does not meet the gatekeeping requirements for a second or successive motion.
Court Description: 28 U.S.C. § 2255 The panel affirmed the district court’s denial of John Ernest Dade’s second or successive 28 U.S.C. § 2255 motion in which he argued that the predicate offenses underlying his convictions for interstate domestic violence, in violation of 18 U.S.C. § 2261(a)(1), and use of a firearm in relation to a violent crime, in violation of 18 U.S.C. § 924(c), no longer qualify as categorical “crimes of violence” in light of Sessions v. Dimaya, 138 S. Ct. 1204 (2018), which held that the residual-clause definition of “crime of violence” in 18 U.S.C. § 16(b) is unconstitutionally vague. The panel agreed with the government’s contention that Dade has not demonstrated that his claims “rely on” the constitutional rule announced in Dimaya, and that his claims thus do not satisfy the gatekeeping provision set forth in 28 U.S.C. § 2255(h)(2). By reviewing the trial record, the panel narrowed the predicate offenses upon which the jury necessarily relied: Count 6 (§ 2261(a)(1)) necessarily rested on Idaho battery; Counts 3 (§ 2261(a)(1)) and 4 (§ 924(c)) necessarily rested on either Idaho assault or battery. The panel wrote that the record before the district court and the relevant legal background at the time of Dade’s trial confirm that the district court’s determination that Idaho assault and battery as crimes of violence relied on 18 U.S.C. § 16(a) (the force clause), not § 16(b) (the residual clause). Because Dade did not satisfy the gatekeeping requirement in UNITED STATES V. DADE 3 § 2255(h)(2), the panel did not need to reach the question whether any Dimaya error was harmless.
This opinion or order relates to an opinion or order originally issued on May 21, 2020.
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