United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Michelle H. Bums, United States Magistrate Judge.
HONORABLE UNITED STATES DISTRICT JUDGE NEIL V. WAKE.
February 16, 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. 3.) Movant was convicted after a jury
trial of one count of Carjacking and aid and abet, in
violation of 18 U.S.C. §§ 2119 and 2, and Use of a
Firearm in a Crime of Violence, in violation of 18 U.S.C.
§ 924(c)(1)(A). (CRDocs. 87, 122.) On March 5, 2005,
Movant was sentenced to a total of 210 months'
imprisonment. (CRDoc. 122.) Movant's convictions were
affirmed on direct appeal. United States v. Julio Riccard
Price, et al., 84 Fed.Appx. 917 (9th Cir. 2003) (CRDoc.
169). Movant also filed a previous § 2255 motion,
raising various grounds for relief, which was denied by the
Court. (CRDocs. 170, 178.)
Movant's current § 2255 motion, he asserts that his
conviction and sentence under 18 U.S.C. § 924(c) are
invalid pursuant to Johnson. (CRDoc. 208; CVDoc. 3
at 12-21.) 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.” §
924(c)(3)(A) and (B). Movant asserts that the offense of
carjacking does not fall under the “force clause,
” as it does not have “as an element the use,
attempted use, or threatened use of physical force against
the person or property of another, ”18 U.S.C. §
924(c)(3)(A), and therefore must fall under the residual
clause. And, since that clause is similarly worded to the
residual clause of § 924(e), the holding of
Johnson renders that clause also unconstitutionally
Court entered a stay of this matter on April 26, 2018,
“pending the Ninth Circuit's decision in United
States v. Begay, No. 14-10080.” (CVDoc. 10.) On
July 13, 2018, Respondent filed a Motion to Vacate Stay and
Motion to Dismiss Movant's § 2255 motion. (CVDoc.
13.) Respondent moves to lift the stay, as a continued stay
to await a decision by the Ninth Circuit in Begay is
unnecessary, as there is now binding Ninth Circuit precedent,
United States v. Gutierrez, 876 F.3d 1254 (9th Cir.
2017), directly addressing Movant's claim. (CVDoc. 15.)
Gutierrez, the Ninth Circuit held that the crime of
carjacking under 18 U.S.C. § 2119 is categorically a
crime of violence under the “force clause” of
§ 924(c). 876 F.3d at 1257. Whether the offense is
committed “by force and violence, ” or by
“intimidation, ” it meets the Johnson
standard of “force capable of causing physical pain or
injury to another person.” Id. at 1256.
Because “carjacking constitutes a crime of violence
under the force clause, ” the Ninth Circuit confirmed
that there is “no need to address the residual
clause.” Id. The Court noted that “each
of the other circuits to confront the question after
Johnson has concluded that carjacking qualifies as a
crime of violence.” Id.
has not responded to Respondent's motion, despite being
given the opportunity to do so.
light of the fact that there is no basis for continuing the
stay in this matter, and in light of Ninth Circuit precedent
foreclosing Movant's claim, this Court will recommend
that the stay be lifted and Movant's § 2255 motion
be denied and dismissed with prejudice.
IS THEREFORE RECOMMENDED that Movant's Motion to
Vacate, Set Aside, or Correct Sentence Under 28 U.S.C.
§2255, (CRDoc. 208; CVDoc. 3 at 12-21.), 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 objections to any factual
determinations of the Magistrate Judge will be considered a
waiver of a party's right to appellate review of the
findings of fact in an order or judgment entered pursuant to
the Magistrate Judge's recommendation. See Rule
72, Federal Rules of Civil Procedure.
Documents in the § 2255 matter
will be referred to as “CVDoc., ” and documents
in the underlying criminal matter will be referred to ...