Hunter v. United States

          REPORT AND RECOMMENDATION

          HONORABLE SUSAN R. BOLTON JUDGE

         On March 13, 2017, the Ninth Circuit Court of Appeals granted Movant's application to file a second or successive 28 U.S.C. § 2255 motion and transferred his case to the District Court, as Movant had made a prima facie showing for relief under Johnson v. United States, 135 S.Ct. 2551 (2015.) (CVDoc.^[1] 10.) Movant was convicted after a jury trial of one count of conspiracy, in violation of 18 U.S.C. § 371, two counts of armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d); and two counts of brandishing a firearm during the commission of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). (CRDocs. 208, 271.) On March 5, 2005, Movant was sentenced to a total of 504 months' imprisonment. (CRDoc. 271.) Movant's convictions were affirmed on direct appeal. United States v. Hunter, No. 266 Fed.Appx. 619 (9th Cir. 2008). Movant also filed a first § 2255 motion on December 29, 2008, raising several issues challenging his convictions and sentence. (CRDoc. 335.) Movant's first § 2255 motion was denied and dismissed on August 17, 2009. (CRDoc. 341.)

         In Movant's now-second § 2255 motion, he asserts that his convictions under 18 U.S.C. § 924(c) are invalid pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015). (CRDoc. 365; CVDoc. 10-7 at 9-13.) In Johnson, the Supreme Court declared that the residual clause of § 924(e), under the Armed Career Criminal Act, was unconstitutionally vague. Movant was sentenced pursuant to § 924(c) which defines “crime of violence, ” and contains a “force clause, ” and a “residual clause.” Movant claims that armed bank robbery is a crime of violence under the “residual clause” of § 924(c), and since that clause is similarly worded to the residual clause of § 924(e), under Johnson that clause is also unconstitutionally vague.

And because the residual clause is unavailable under Johnson, armed bank robbery under § 2113(a) and (d) does not amount to a “crime of violence” under 18 U.S.C. § 924(c)(3). [Movant]'s § 924(c) convictions are therefore unconstitutional, and must be vacated.

(CRDoc. 365 at 11; CVDoc. 10-7 at 13.)

         This Court entered a stay of this matter on March 27, 2017, pending the Ninth Circuit's decision in United States v. Begay, No. 14-10080, and the Supreme Court's decision in Lynch v. Dimaya, No. 15-1498 (cert. granted Sept. 29, 2016; argued Jan. 17, 2017). (CVDoc. 15.) That stay was lifted on April 19, 2018. (CVDoc. 17.) On May 9, 2018, Respondent filed a Motion to Dismiss Movant's § 2255 motion. (CVDoc. 18.) Respondent asserts that Movant's claims lack merit:

[They] are squarely foreclosed by the Ninth Circuit's recent decision in United States v. Watson, 881 F.3d 782 (9th Cir. 2018), which held that bank robbery, in violation of 18 U.S.C. § 2113(a), and armed bank robbery, in violation of 18 U.S.C. §2113(a) and (d), are crimes of violence under § 924(c)(3)(A) [the “force” clause].

(CVDoc. 18 at 3.)

         The Supreme Court's recent decision in Dimaya does not change this result. In Dimaya, the Court addressed the definition of “crime of violence” under 18 U.S.C. § 16, a statutory provision relating to crimes affecting an alien's deportability. Dimaya, 138 S.Ct. 1204, 1215 (2018). The statutory provision's definition of “crime of violence” is nearly identical to § 924(c). Although the Supreme Court found the residual clause of that statute unconstitutionally vague, it did not cast doubt on the viability of the “force clause” of that statute.

         On June 5, 2018, Movant filed his Response to Respondent's motion, indicating therein that he “does not oppose the Government's Motion to Dismiss [] in light of the current holding in United States v. Watson, 881 F.3d 782 (9th Cir. 2018).” In light of Ninth Circuit precedent foreclosing Movant's claim, this Court will recommend that Movant's § 2255 motion be denied and dismissed with prejudice.

         IT IS THEREFORE RECOMMENDED that Movant's Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. §2255, (CRDoc. 365; CVDoc. 10-7 at 9-13), be denied and dismissed with prejudice.

         IT IS FURTHER RECOMMENDED that the Court deny a Certificate of Appealability and leave to proceed in forma pauperis on appeal because Movant has not made a substantial showing of the denial of a constitutional right.

         This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed seventeen (17) pages in length. Failure timely to file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9^th Cir. 2003). Failure timely to file ...