McCreary v. United States

          HON.SUSAN R. BOLTON UNITED STATES DISTRICT JUDGE

          REPORT AND RECOMMENDATION

          MICHELLE H. BURNS UNITED STATES MAGISTRATE JUDGE

         On 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). (CVDocs.^[1] 3-2, 4.) 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, 272.) On March 5, 2005, Movant was sentenced to a total of 600 months' imprisonment. (CRDoc. 271.) Movant's convictions were affirmed on direct appeal. United States v. McCreary, 308 Fed.Appx. 39 (9th Cir. 2008) (CRDoc. 309). Movant also filed previous § 2255 motions, raising various grounds for relief. All were denied by the Court.

         In Movant's current § 2255 motion, he asserts that his convictions under 18 U.S.C. § 924(c) are invalid pursuant to Johnson. (CRDoc. 364; 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 claims that armed bank robbery is a crime of violence under the “residual clause, ” and since that clause is similarly worded to the residual clause of § 924(e), under Johnson that clause is also unconstitutionally vague. He reasons:

[b]ecause unarmed bank robbery under § 2113(a) does not have as an element the use, attempted use, or threatened use of violent force as defined in Johnson 2010, it does not qualify as a “crime of violence” under the force clause. For that reason, armed bank robbery also does not qualify under the force clause as it only adds the additional element of “use of a dangerous weapon or device.” 18 U.S.C. § 2113(d). ... And because the residual clause is unavailable under Johnson, neither armed nor unarmed bank robbery under § 2113(a) or (d) amount to a “crime of violence” under 18 USC § 924(c)(3).

(CRDoc. 364 at 8.)

         This Court entered a stay of this matter on March 20, 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).” (CVDoc. 11.) On May 4, 2018, Respondent filed a Motion to Vacate Stay and Motion to Dismiss Movant's § 2255 motion. (CVDoc. 14.) Respondent moves to lift the stay as Dimaya has been decided by the Supreme Court, ^[2] and does not form a basis for relief, and a continued stay to await a decision by the Ninth Circuit in Begay is unnecessary, as there is now binding Ninth Circuit precedent directly addressing Movant's claims. (CVDoc. 14.)

         This binding Ninth Circuit precedent, Respondent asserts, forecloses Movant's claim. The Ninth Circuit has recently reaffirmed prior precedent holding that bank robbery by intimidation “requires at least an implicit threat to use the type of violent physical force necessary to meet the Johnson standard.” See, United States v. Gutierrez, 876 F.3d 1254, 1257 (9th Cir. 2017) (reaffirming United States v. Selfa, 918 F.2d 749 (9th Cir. 1990)). Soon thereafter, the Ninth Circuit held that armed bank robbery is a crime of violence under 18 U.S.C. § 924(c). United States v. Watson, 881 F.3d 782, 786 (9th Cir. 2018) (“Because bank robbery ‘by force and violence, or by intimidation' is a crime of violence, so too is armed bank robbery.”).

         In his Response, Movant asserts to the contrary that armed bank robbery is not a crime of violence, as “[a]rmed bank robbery is broader than the § 924(c) elements clause for several reasons.” (CVDoc. 15 at 2.) He also asserts that the offense is “indivisible, [and that] courts may not resort to the modified categorical approach to cure its overbreadth.” (Id.) Movant, however, provides no authority for these arguments. Movant further requests that the stay in this matter should be continued, as the decision in Watson may be reviewed by the Supreme Court, and that in Watson, a petition for writ of certiorari will be filed. (CVDoc. 15 at 2.) The Court however, “may not stay a case solely to wait for the Supreme Court to overturn binding circuit precedent, ” citing Yong v. INS, 208 F.3d 1116, 1119-21 & n.2 (9th Cir. 2000).

         In 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.

         IT IS THEREFORE RECOMMENDED that Movant's Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. §2255, (CRDoc. 364; CVDoc. 3 at 12-21), 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 ...