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United States v. Stain

United States District Court, D. Nevada

July 12, 2017

EDWARD STAIN, Defendant.



         Before the court is petitioner Edward Stain's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.[1] 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.[2] The court will therefore deny his motion but will grant him a certificate of appealability.

         I. Background

         A. Stain's conviction and subsequent proceedings

         On 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 this case.[3]

         Pursuant 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.

         B. Johnson v. United States and subsequent challenges

         Stain 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”).[4] 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).

         Moreover, 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.

         Last 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.

         As the 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. 2016).

         II. Legal standard

         Pursuant 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).

         Section 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).

         III. Discussion

         Under 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 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). 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 match[5]one of the two clauses in order to constitute a crime of violence and thus satisfy that element under section 924(c)(1)(A).

         Here, 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.'” United ...

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