Tran Damone Monroe v. United States of America

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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRAN DAMONE MONROE,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
No. 17-56712
D.C. Nos. CR-98-00060-AHS
CV-15-02047-TJH
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Terry J. Hatter, District Judge, Presiding
Argued and Submitted March 2, 2020
Submission Vacated March 6, 2020
Resubmitted September 14, 2021
Pasadena, California
Before: KLEINFELD and CALLAHAN, Circuit Judges, and CHRISTENSEN,**
District Judge.
Tran Damone Monroe appeals the district court’s denial of his motion to
vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, or, in the
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Dana L. Christensen, United States District Judge for
the District of Montana, sitting by designation.
FILED
SEP 16 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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alternative, of his petition for writ of habeas corpus under 28 U.S.C. § 2241. We
have jurisdiction under 28 U.S.C. § 2253. We review de novo the district court’s
denial of a § 2255 motion. United States v. Reves, 774 F.3d 562, 564 (9th Cir.
2014). We reverse and remand.
Monroe filed a § 2241 petition on December 9, 2015, arguing in relevant
part that, in light of the Supreme Court’s holding that the residual clause of the
Armed Career Criminal Act was unconstitutional in Johnson v. United States, 576
U.S. 591 (2015), his prior California convictions for robbery under California
Penal Code § 211 no longer qualified as “serious violent felonies” for purposes of
18 U.S.C. § 3559(c), the federal three-strikes law under which he was sentenced to
life in prison. Monroe’s appointed counsel omitted Monroe’s Johnson argument
concerning his state convictions in the § 2255 motion and habeas petition filed
before the district court on May 31, 2016. The district court concluded that
Monroe’s § 2255 motion was untimely because it was filed more than one year
after his conviction became final and Monroe “failed to identify, and the Court
could not find, any Supreme Court precedent that recognized a retroactive right
upon which Petitioner may bring this challenge.”
On appeal, Monroe maintains that he insisted that his counsel make a
Johnson argument and did not acquiesce in its omission at any stage of this case.
The United States has “elected not to pursue any waiver arguments” concerning

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Monroe’s Johnson claim and concedes that if Monroe’s motion is timely, this
Court should remand to the district court for consideration on the merits.
It is unclear from the record before the Court whether the sentencing court
relied on the residual clause in rejecting Monroe’s objection that his state robbery
convictions were not “serious violent felon[ies]” as defined by 18 U.S.C.
§ 3559(c)(2)(F). Accordingly, Monroe’s § 2255 motion was timely because it was
filed within one year of the Supreme Court’s decision in Johnson, which is
retroactively applicable to cases on collateral review. 28 U.S.C. § 2255(f)(3);
Welch v. United States, 136 S. Ct. 1257, 1265 (2016); see United States v. Geozos,
870 F.3d 890, 896 (9th Cir. 2017) (“[W]hen it is unclear whether a sentencing
court relied on the residual clause . . . , but it may have, the defendant’s § 2255
claim ‘relies on’ the constitutional rule announced in Johnson II.”), overruled on
other grounds by Stokeling v. United States, 139 S. Ct. 544 (2019). We therefore
reverse the district court’s denial of Monroe’s § 2255 motion on timeliness
grounds and remand for consideration of his motion on the merits.
REVERSED AND REMANDED.

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