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United States v. Myrie

United States District Court, D. Nevada

January 4, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
KURT J. MYRIE et al., Defendants.

          ORDER

          ROBERT C. JONES United States District Judge.

         A grand jury indicted Defendants Kurt Myrie, Dominic Davis, and Harlon Jordan of: (1) conspiracy to commit bank robbery; (2) armed bank robbery; (3) brandishing a firearm during, in relation to, and in furtherance of a conspiracy to commit bank robbery; and (4) brandishing a firearm during and in relation to a crime of violence (consolidated with Count 3). (Superseding Indictment, ECF No. 36). Myrie pled guilty to all counts, and a jury found Davis and Jordan guilty on all counts. All three Defendants appealed, and the Court of Appeals affirmed the convictions and sentences.

         Defendants have filed habeas corpus motions under 28 U.S.C. § 2255. The Court finds that although the motions are statutorily timely, they are both procedurally defaulted and without merit even assuming the defaults are excused.

A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of . . . the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review . . . .

28 U.S.C. § 2255(f), (f)(3). Defendants filed their initial motions on June 21 and 22, 2016, which is within one year of June 26, 2015, the date on which the Supreme Court announced the rule of Johnson v. United States (Johnson II), 135 S.Ct. 2551 (2015) upon which Defendants rely. The Supreme Court has made Johnson II retroactive on collateral review. See Welch v. United States, 136 S.Ct. 1257, 1268 (2016). The motions are therefore statutorily timely. They are procedurally defaulted, however, both because Defendants made no vagueness-type objections at or before sentencing and because they failed to appeal based on that issue.

         Defendants argue they are actually innocent of the brandishing offense, which if true would excuse the default. See Massaro v. United States, 538 U.S. 500, 504 (2003); United States v. Ratigan, 351 F.3d 957, 962 (9th Cir. 2003). Specifically, they argue the bank robbery and conspiracy charged in Counts 1 and 2 that formed the basis for the brandishing offense in Count 4 were not “crime[s] of violence” under 18 U.S.C. § 924(c)(3) because the residual clause defining “crime of violence” is similar to the residual clause of § 924(e)(2), which the Supreme Court has struck down as unconstitutionally vague. See Johnson II, 135 S.Ct. at 2563. The definition of “crime of violence” applied to Defendants reads as follows, with the allegedly unconstitutionally vague residual clause emphasized:

         (3) For purposes of this subsection the term “crime of violence” means an offense that is a felony and--

(A) has as an element the use, attempted use, or threatened use of physical force against the person 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)(A)-(B) (emphasis added). The definition of “violent felony” at issue in Johnson II reads as follows, with the unconstitutionally vague residual clause emphasized:

(B) the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that--
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential ...

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