United States District Court, D. Arizona
ORDER
David
C. Bury, Judge
June 6,
2016, Plaintiff filed a Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255. (Motion
(Doc. 1)). After being stayed pending a decision by the
Supreme Court in Sessions v. Dimaya, 138 S.Ct. 1208
(2018), the motion was fully briefed August 10, 2018. In the
interim, the Ninth Circuit issued an opinion in United
States v. Watson, 881 F.3d 782, 783-84 (9th
Cir. 2018) which is binding precedent upon which the Court
relies and denies the Motion. On August 10, 2018, when the
Petitioner filed the Reply, he asked the Court to issue a
certificate of appealability if it denies the Petition
because a Petition for Writ of Certiorari was submitted in
Watson to the United States Supreme Court. That
petition has now been denied. Watson v. United
States, 139 S.Ct. 203 (2018). Watson is
directly on point with this case and requires denial of
Petitioner's habeas motion. The Court will not issue a
certificate of appealability.
BACKGROUND
Petitioner
was charged and convicted by a jury for bank robbery in
violation of U.S.C. § 2113(a), with use of a deadly
weapon or destructive device by threatening to use a hand
grenade during a crime of violence in violation of
924(c)(1)(A). The Court sentenced the Defendant to 45 months
for Count One, bank robbery, and 360 months for Count Two,
for the use of a deadly weapon during a crime of violence.
Petitioner
challenges the constitutionality of his sentence based on the
Supreme Court's decisions in Johnson v. United
States, 135 S.Ct. 2551 (2015) and Sessions v.
Dimaya, 138 S.Ct. 1208 (2018). In Johnson, the
Supreme Court invalidated a prisoner's sentence under the
Armed Career Criminal Act (ACCA) because the definition of
“violent felony” for a predicate crime that
“otherwise involves conduct that presents a serious
potential risk of physical injury to another” was
unconstitutionally vague. Johnson, 135 S.Ct. at
2557; 18 U.S.C. § 924(e)(2)(b)(ii). The Court in
Dimaya invalidated a similarly-worded definition of
“crime of violence” in the Immigration and
Nationality Act (“INA”) because it likewise
“devolv[ed] into guesswork and intuition, invited
arbitrary enforcement, and failed to provide fair
notice.” Dimaya, 138 S.Ct. at 1223; 18 U.S.C.
§ 16(b).
Petitioner
challenges his sentence for Count Two, use of a deadly weapon
or destructive device during a “crime of violence,
” because the definition of the predicate “crime
of violence” in § 924(c) is unconstitutional
following Johnson and Dimaya.
ANALYSIS
Petitioner
argues that bank robbery should no longer be considered a
predicate “crime of violence” for purposes of
§ 924(c)(3) because its residual clause, subsection B,
suffers from the same unconstitutional vagueness identified
by the Supreme Court in the statutes at issue in
Johnson and Dimaya. Under Watson,
however, the Ninth Circuit Court of Appeals found that a bank
robbery conviction qualifies as a “crime of
violence” predicate offense.
In
Count Two, Petitioner was charged, convicted, and sentenced
for use of a deadly weapon (destructive device) during a
“crime of violence” in violation of 18 U.S.C.
924(c)(1). A “Crime of Violence” under 18 U.S.C
§ 924(c)(1) is defined as a felony that has either: (A)
an element the use, attempted use, or threatened use of
physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that
physical force against the person or property of another may
be used in the course of committing the offense. 18 U.S.C.
§ 924(c)(3). Subsection (A) is known as the “force
clause” and is satisfied if the predicate crime has as
an element the use of “‘violent' physical
force-‘that is force capable of causing physical pain
or injury.'” Watson, 881 F.3d at 784
(quoting Johnson v. United States, 559 U.S. 133, 140
(2010)). In Watson, the court held that a felony
conviction for bank robbery under § 2113(a) constitutes
a “crime of violence” under the “force
clause, ” § 924(c)(3)(A). Watson, 881
F.3d at 784.
The
defendants in Watson were convicted of robbing a
bank under § 2113(a) while armed with handguns. The
Court finds no distinction in the fact that, here, the
Defendant was armed with a hand grenade. In Watson,
the Ninth Circuit rejected the argument that after
Johnson bank robbery no longer qualifies as a crime
of violence. Following Watson, as it must, the Court
finds bank robbery fits the definition of “crime of
violence” in § 924(c)(3), and the sentence imposed
for Count Two is constitutional. The Court denies the §
2255 motion.
Habeas
relief under 28 U.S.C. § 2255 is only available to a
petitioner in custody in violation of the Constitution or
laws of the United States. Under § 2255, “a
district court must grant a hearing to determine the validity
of a petition brought under that section, [u]nless the
motions and the files and records of the case conclusively
show that the prisoner is entitled to no relief.”
United States v. Blaylock, 20 F.3d 1458, 1465 (9th
Cir. 1994). “The standard essentially is whether the
movant has made specific factual allegations that, if true,
state a claim on which relief could be granted.”
United States v. Withers, 638 F.3d 1055, 1062 (9th
Cir. 2011). A district court may dismiss a § 2255 motion
based on a facial review of the record “only if the
allegations in the motion, when viewed against the record, do
not give rise to a claim for relief or are palpably
incredible or patently frivolous.” Id. at
1062-63. Because the Court finds that the Petitioner's
Motion does not give rise to a claim for relief, it denies it
without a hearing.
Rule
11(a), Rules Governing Section 2255 Cases, requires that the
“district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” The standard for issuing a certificate of
appealability is whether the applicant has “made a
substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). “Where a
district court has rejected the constitutional claims on the
merits, the showing required to satisfy § 2253(c) is
straightforward: The petitioner must demonstrate that
reasonable jurists would find the district court's
assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). To meet the “threshold inquiry” on
debatability, the Ninth Circuit instructs that the petitioner
“must demonstrate that the issues are debatable among
jurists of reason; that a court could resolve the issues [in
a different manner]; or that the questions are adequate to
deserve encouragement to proceed further.”
Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir.
2000) (internal citations omitted).
Petitioner's
challenge to his conviction and sentence under § 924(c)
runs directly contrary to controlling Ninth Circuit
authority. The Watson decision is binding precedent
on this Court, and as the Ninth Circuit noted, it reached the
same conclusion as “every other circuit to address the
same question.” Watson, 881 F.3d at 785. Given
the certainty of dismissal of the Petition under
Watson, the Court will not issue a certificate of
appealability.
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