United States District Court, N.D. Oklahoma
OPINION AND ORDER
CLAIRE
V. EAGAN UNITED STATES DISTRICT JUDGE
Now
before the Court is defendant's motion to vacate, set
aside or correct sentence under 28 U.S.C. § 2255 (Dkt. #
1184), and his two-part motion to amend and/or supplement his
§ 2255 motion (Dkt. # 1228). Defendant Kenneth Wayne
Stiger argues that, because one of his prior convictions was
reduced from a felony to a misdemeanor, his mandatory life
sentence under 21 U.S.C. §§ 841(b)(1)(A) now
violates his rights under the Due Process Clause and the
Eighth Amendment. Plaintiff responds that the redesignation
of defendant's conviction as a misdemeanor under state
law does not affect the validity of his federal sentence, and
asks the Court to deny defendant's § 2255 motion.
I.
On
April 6, 2001, Stiger was charged by a superseding indictment
with conspiring to possess with intent to distribute cocaine
and marijuana. Dkt. # 8. Thereafter, on July 20, 2001, Stiger
was charged by a second superseding indictment with,
inter alia, conspiring to possess with intent to
distribute cocaine, marijuana, and cocaine base (crack), all
in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)
(count one). Dkt. # 100. Defendant made his initial
appearance on August 29, 2001, and counsel was appointed to
represent him. Dkt. # 201. Count one of the second
superseding indictment carried a statutory mandatory minimum
sentence of 10 years, and a statutory maximum sentence of
life imprisonment. However, plaintiff filed an enhancement
information (Dkt. # 439) under § 851, stating that
defendant had two prior convictions for felony drug offenses
and was on notice that he would receive a mandatory minimum
sentence of life imprisonment if convicted of count one.
See 21 U.S.C. § 841(b)(1) (“If a person
commits a violation of this subparagraph . . . after two or
more prior convictions for a felony drug offense have become
final, such person shall be sentenced to a mandatory term of
life imprisonment . . .”). Defendant exercised his
right to a jury trial and was convicted of drug conspiracy
(count one), and, by special interrogatory, the jury found
that defendant knowingly and intentionally participated in
the conspiracy as to the distribution of marijuana, cocaine,
and cocaine base. Dkt. # 540. On February 20, 2003, the
Honorable H. Dale Cook entered judgment sentencing defendant
to life imprisonment as to the drug conspiracy charge (count
one), and a concurrent sentence of 21 years for money
laundering conspiracy (count two). Dkt. # 764.
On
appeal, the Tenth Circuit Court of Appeals affirmed
defendant's convictions on the merits, but remanded the
case to the district court for a hearing on an attorney
conflict of interest issue. Dkt. # 912. Following an
evidentiary hearing, Judge Cook declined to grant
defendant's request for a mistrial, and this ruling was
affirmed on appeal. Dkt. # 1052. On April 8, 2009, defendant
filed a § 2255 motion asserting claims of ineffective
assistance of counsel. Dkt. # 1084. The case was randomly
reassigned to the undersigned. Dkt. # 1086. The Court denied
defendant's § 2255 motion, and the Tenth Circuit
denied defendant's request for a certificate of
appealability. Dkt. ## 1107, 1113. Defendant filed a motion
for writ of habeas corpus asserting that he was actually
innocent of his two felony drug offenses that supported the
enhancement of his federal drug conspiracy conviction. Dkt. #
1116. The Court found that defendant's motion was an
unauthorized second or successive § 2255 motion and
dismissed it for lack of jurisdiction. Dkt. # 1117.
On July
8, 2016, defendant filed a § 2255 motion seeking relief
based on a change in California law that allowed defendant to
petition the state court to convert one of his prior felony
convictions into a misdemeanor. Dkt. # 1184. Defendant sought
authorization from the Tenth Circuit to proceed with a second
or successive § 2255 motion. The Tenth Circuit dismissed
defendant's request as unnecessary, because he could not
have raised this claim in his original § 2255 motion and
his motion was not second or successive. Dkt. # 1188. This
Court ordered plaintiff to file a response to defendant's
§ 2255 motion. Dkt. # 1194. Plaintiff has filed a
response (Dkt. # 1203). Defendant has filed a reply (Dkt. #
1212) and an amended reply (Dkt. # 1213). Defendant also
filed a two-part motion to supplement and/or amend his
pending § 2255 motion (Dkt. # 1228).
II.
Defendant
argues that he should be resentenced without application of a
mandatory life sentence under § 841(b)(1)(A), because
one of the two felony convictions used to enhance his
sentence has been reduced to a misdemeanor. Plaintiff
responds that the subsequent reduction of a penalty under
state law has no effect on defendant's federal sentence,
because it is undisputed that defendant had two
“final” convictions for felony drug offenses when
he was sentenced and Proposition 47 does not alter the
historical fact of defendant's prior felony convictions.
On
November, 4, 2014, voters in the state of California passed
Proposition 47, also known as the Safe Neighborhoods and
Schools Act, and Proposition 47 took effect on November 5,
2014. People v. Rivera, 183 Cal.Rptr.3d 362
(Cal.Ct.App. 2015). Proposition 47 reduced certain drug
possession offenses from a felony to a misdemeanor, and the
maximum sentence for these offenses became no more than one
year imprisonment. Cal. Health & Safety Code §
11350. Proposition 47 also created a procedure for criminal
defendants who had been convicted of a felony drug offense to
petition the state court to redesignate a felony drug
conviction as a misdemeanor. Cal. Penal Code § 1170.18.
The presentence investigation report in this case states that
defendant had been convicted of possession of a controlled
substance on April 21, 1986, and was sentenced to 180 days
imprisonment. Defendant filed a petition in the Superior
Court of California in Los Angeles County and, on July 8,
2015, his 1986 felony drug conviction was reduced to a
misdemeanor. Dkt. # 1186, at 40. The conviction was one of
the two felony convictions identified in the enhancement
information that was used to enhance the statutory mandatory
minimum sentence to life imprisonment. Dkt. # 439.
Defendant
makes clear that he does not raise any statutory claims.
Rather, defendant argues that it would violate his
constitutional rights under the Due Process Clause and the
Eighth Amendment to keep the § 841(b)(1)(A) enhancement
in place after learning that his prior conviction carries a
maximum penalty of six months only and is treated as if it
had never been a felony. Dkt. # 1228, at 5. Defendant relies
on Johnson v. United States, 544 U.S. 295 (2005).
A.
Due Process
Defendant
argues that the California court order invalidated his felony
conviction and replaced it with a misdemeanor. He argues,
therefore, that his prior felony drug conviction was vacated
and he has a right to relief under Johnson. Dkt. #
1228, at 6-7. The Tenth Circuit addressed this precise due
process argument in United States v. McGee, 760 Fed.
App'x 610 (10th Cir. Jan. 14, 2019)
(unpublished).[1] The facts of McGee are nearly
identical to the facts of the present case. McGee had
received a life sentence under § 841(b)(1)(A) because,
at the time, he had two prior final California felony drug
convictions. Id. at 610. After California adopted
Proposition 47, a California state court entered a nunc
pro tunc judgment reducing one of McGee's prior drug
convictions from a felony to a misdemeanor. Id. at
611. McGee brought a § 2255 motion challenging his life
sentence imposed under § 841. Id. This Court
denied the motion. On appeal, a Tenth Court panel addressed
whether McGee's life sentence violates the Due Process
Clause in light of Johnson, as a result of the
felony conviction being retroactively reduced to a
misdemeanor offense. Id.
The
Tenth Circuit panel noted that Johnson acknowledges
a right to resentencing after a predicate offense has been
successfully attacked, vacated, or set aside. Id. at
613. The Court explained that
[t]he Johnson scenario arises where a defendant
never qualified for an enhanced sentence to begin with
because his underlying predicate conviction was invalid or
unconstitutional. Due process concerns may also arise where a
predicate conviction, though valid, did not qualify for
enhancement purposes. . . . But McGee's California
conviction fits in neither category. It was not vacated. Nor
has he shown that it did not qualify as a predicate offense
at the time of sentencing. Instead, it was only modified, as
an act of legislative grace, from a felony to a misdemeanor.
. . . [C]ircuit precedent applying ยง 841 has made a
significant distinction between convictions that have been
vacated or ...