United States District Court, D. Nevada
R. HICKS UNITED STATES DISTRICT JUDGE
the court is petitioner Edward Stain's motion to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255. ECF No. 404. The court finds that both
Hobbs Act robbery and federal bank robbery are categorically
crimes of violence under the “force clause” under
18 U.S.C. § 924(c). In turn, even if section
924(c)'s “residual clause” is void for
vagueness-a question the court does not reach-Stain is not
entitled to relief. The court will therefore deny his motion
but will grant him a certificate of appealability.
Stain's conviction and subsequent proceedings
February 3, 2006, a jury found Stain guilty of one count of
conspiracy to commit armed bank robbery (count one); two
counts of interference with commerce by threats or violence
(“Hobbs Act robbery”) (counts two and six); one
count of armed bank robbery (count four), and two counts of
possession of a firearm during and in relation to a crime of
violence under 18 U.S.C. § 924(c) (counts three and
five). ECF No. 217; see also ECF No. 171. On June
13, 2008, the Ninth Circuit Court of Appeals reversed
Stain's conviction only as to the count of
conspiracy to commit armed bank robbery and affirmed
the remainder of the judgment. ECF No. 272. On August 28,
2012, the court granted in part and denied in part
Stain's pro se section 2255 motion. ECF Nos.
285, 328. The court subsequently entered the second amended
judgment (ECF No. 329), which is the operative judgment in
to this district's Amended General Order on April 27,
2016, Stain filed an “abridged” motion to vacate
in order to toll the statute of limitations under section
2255. ECF No. 397. He subsequently filed a timely full motion
to vacate, set aside, or correct his sentence. ECF No. 404.
Johnson v. United States and subsequent
filed his section 2255 motion in the wake of Johnson v.
United States, 135 S.Ct. 2551 (2015). There, the U.S.
Supreme Court ruled that a portion of the Armed Career
Criminal Act's (“ACCA”) violent-felony
definition, often referred to as the “residual clause,
” was unconstitutionally vague (i.e., “void for
vagueness”). Johnson, 135 S.Ct. at 2557. The
Supreme Court subsequently held that Johnson
announced a new substantive rule that applied retroactively
to cases on collateral review, Welch v. United
States, 136 S.Ct. 1257 (2016), thus allowing defendants
to challenge their ACCA convictions under section 2255.
See, e.g., United States v. Avery, No.
3:02-CR-113-LRH-VPC, 2017 WL 29667 (D. Nev. Jan. 3, 2017).
Johnson also sparked challenges to other federal
criminal statutes and sections of the U.S. Sentencing
Guidelines (“U.S.S.G.”) that incorporate a
“crime-of-violence” definition that includes a
residual clause similar or identical to the ACCA's. One
such case relevant to this motion is Dimaya v.
Lynch, 803 F.3d 1110 (9th Cir. 2015), cert.
granted, 137 S.Ct. 31 (2016). There, the Ninth Circuit
addressed a challenge to the residual clause found in 18
U.S.C. § 16(b), which is similar but not identical to
the ACCA's residual clause. Dimaya, 803 F.3d at
1111-12. The court ultimately held that section 16(b)'s
clause was also void for vagueness. Id. at 1119.
year, the U.S. Supreme Court granted certiorari in
Dimaya and heard arguments in early 2017. Lynch
v. Dimaya, 137 S.Ct. 31 (2016). However, instead of
issuing a decision, the Court set the case for re-argument
for its next term.
instant motion demonstrates, Johnson and
Dimaya have also led to challenges to the residual
clause found in 18 U.S.C. § 924(c), which is nearly
identical to the section 16(b) residual clause that the Ninth
Circuit held void for vagueness in Dimaya. While a
challenge to section 924(c) is currently before the Ninth
Circuit, the court has deferred ruling on the issue until the
Supreme Court decides Dimaya. United States v.
Begay, No. 14-10080, ECF No. 87 (9th Cir. 2017); see
also United States v. Begay, 2016 WL 1383556 (9th Cir.
to 28 U.S.C. § 2255, a prisoner may move the court to
vacate, set aside, or correct a sentence if “the
sentence was imposed in violation of the Constitution or laws
of the United States, or . . . the court was without
jurisdiction to impose such sentence, or . . . the sentence
was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack.” 28 U.S.C.
§ 2255(a). “Unless the motion and the files and
records of the case conclusively show that the prisoner is
entitled to no relief, the court shall cause notice thereof
to be served upon the United States attorney, grant a prompt
hearing thereon, determine the issues and make findings of
fact and conclusions of law with respect thereto.”
Id. § 2255(b).
2255 creates a one-year statute of limitations. Id.
§ 2255(f). When a petitioner seeks relief pursuant to a
right recognized by a U.S. Supreme Court decision, the
statute of limitations runs from “the date on which the
right asserted was initially recognized by the . . . Court,
if that right has been . . . made retroactively applicable to
cases on collateral review . . . .” Id. §
2255(f)(3). The petitioner bears the burden of demonstrating
that his petition is timely and that he is entitled to
relief. Ramos-Martinez v. United States, 638 F.3d
315, 325 (1st Cir. 2011).
18 U.S.C. § 924(c)(1)(A), it is a felony to use or carry
a firearm “during and in relation to any crime of
violence . . . .” This statute therefore creates an
offense separately punishable from another
concurrently-charged offense that the indictment alleges is a
crime of violence. Section 924(c) defines “crime of
violence” as a felony that
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of
(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). The first clause in this
definition is commonly referred to as either the “force
clause” or “elements clause, ” while the
second clause is the aforementioned residual clause. Because
the definition is worded disjunctively, a felony need only
categorically matchone of the two clauses in order to
constitute a crime of violence and thus satisfy that element
under section 924(c)(1)(A).
the counts of Hobbs Act robbery and federal armed bank
robbery (counts 2 and 4) served as the underlying crimes of
violence for Stain's two separate section 924(c)
convictions (counts 3 and 5). See ECF No. 171. The
Hobbs Act “prohibits any robbery or extortion or
attempt or conspiracy to rob or extort that ‘in any way
or degree obstructs, delays or affects commerce or the
movement of any article or commodity in commerce.'”