United States District Court, D. Arizona
REPORT AND RECOMMENDATION
HONORABLE SUSAN R. BOLTON JUDGE
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. 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.)
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
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
(CRDoc. 365 at 11; CVDoc. 10-7 at 13.)
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
(CVDoc. 18 at 3.)
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.
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
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.
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.
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 (9th Cir.
2003). Failure timely to file ...