United States District Court, D. Nevada
J. Dawson United States District Judge
before the Court is Petitioner's Motion to Vacate, Set
Aside, or Correct Criminal Convictions and Sentence Pursuant
to 28 U.S.C. § 2255 (##64, 66). The Government filed a
response (#72) to which Petitioner replied (#73).
14, 2013, Petitioner pled guilty to three counts of Hobbs Act
robbery under 18 U.S.C. § 1951, and one count of use of
a firearm during and in relation to a crime of violence under
18 U.S.C. § 924(c). Petitioner had a total offense level
of 29 and criminal history category of IV, with a
corresponding guideline range of 121-151 months, followed by
an additional 84-month consecutive sentence, due to the
924(c) sentence enhancement. Without the 924(c) enhancement,
Petitioner would have had a total offense level of 29 and
criminal history category of IV, with a corresponding
guideline range of 121-151 months, but no additional 84-month
consecutive sentence. Petitioner seeks relief from his
sentencing enhancement imposed under 924(c), arguing he is no
longer eligible for it based on a new, substantive rule
retroactively applicable to cases on collateral review.
federal prisoner may move to “vacate, set aside or
correct” his sentence if it “was imposed in
violation of the Constitution.” 28 U.S.C. §
2255(a). When a petitioner seeks relief pursuant to a right
recognized by a United States Supreme Court decision, a
one-year statute of limitations for seeking habeas relief
runs from “the date on which the right asserted was
initially recognized by the Supreme Court.” 28 U.S.C.
§ 2255(f)(3). The petitioner bears the burden of
demonstrating that his petition is timely and that he is
entitled to relief.
Johnson v. United States Invalidates 18 U.S.C. §
initial matter, this Court finds that Johnson, in
light of Dimaya, holds 924(c)'s residual clause
unconstitutional. On June 26, 2015, the United States Supreme
Court decided Johnson v. United States, finding the
residual clause of the Armed Career Criminal Act
(“ACCA”) violates the Constitution's
guarantee of due process. See Johnson v. U.S., 135
S.Ct. 2551, 2557 (2015). On April 18, 2016, the Supreme Court
held Johnson announced a new, substantive rule that
has retroactive effect on cases on collateral review. See
Welch v. U.S., 136 S.Ct. 1257, 1268 (2016). On June 17,
2016, within the one-year statute of limitations, Petitioner
filed the present motion based on the new, retroactively
applicable rule announced in Johnson.
April 17, 2018, the United States Supreme Court decided
Sessions v. Dimaya, No. 15-1498, slip op. (Apr. 17,
2018), finding the residual clause of 18 U.S.C. § 16(b)
to be unconstitutionally vague. The Supreme Court did so by
expanding the logic of Johnson, stating
§16's residual clause violates the
Constitution's guarantee of due process in the same way
the ACCA's residual clause did. Dimaya, No.
151498, slip op., at 8-9. Based on the Court's
willingness to expand the reach of Johnson to §
16(b) because it too shares the same fatal features the
ACCA's residual clause possesses, it follows that
Johnson must logically apply to 924(c), to
invalidate its identical residual clause.
Johnson Does Not Entitle Petitioner to Relief
argues that in light of Johnson and the chain of
precedent that flows from it, his Hobbs Act robbery
conviction may no longer be considered a predicate
“crime of violence” warranting an enhancement
under 924(c). While the Supreme Court has made clear that the
924(c)(3)(B) residual clause is seemingly unconstitutional,
Johnson and its progeny have no effect on
Petitioner's conviction because Hobbs Act robbery is
decidedly a crime of violence under the constitutional
924(c)(3)(A) force clause. On May 23, 2016, the Ninth Circuit
decided Howard v. United States, 650 Fed.Appx. 466
(9th Cir. May 23, 2016, amended Jun. 24, 2016) (unpublished),
holding Hobbs Act robbery is a crime of violence under the
constitutional force clause of 924(c)(3)(A). There, like
Petitioner here, the defendant argued Hobbs Act robbery could
be committed by “fear of injury, ” thus making it
not a categorical match for the 924(c)(3)(A) force clause.
However, the Ninth Circuit held this argument was
“unpersuasive and . . . foreclosed by” the
court's previous published decision in United States
v. Selfa, 918 F.2d 849 (9th Cir. 1990).
Petitioner's Hobbs Act robbery conviction is
unquestionably a qualifying crime of violence. As such, his
previously-imposed sentence including the enhancement under
924(c) must stand.
Certificate of Appealability
order for Petitioner to assert a right to appeal this final
order, he must first warrant a certificate of appealability.
28 U.S.C. §2253(b), (c)(1). To do so, Petitioner must
make “a substantial showing of the denial of a
constitutional right, ” and “must demonstrate
that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel529 U.S. 473, 483-84
(2000). Petitioner has not demonstrated a substantial showing
of the denial of a constitutional right, ...