United States District Court, D. Nevada
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE
the Court is Defendant Derrick Estell's Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody (“Motion”). (ECF
No. 250.) The Court ordered the government to respond and
permitted Estell to file a reply. (ECF Nos. 252, 253, 254.)
Estell also filed a motion for appointment of counsel. (ECF
No. 251.) For the reasons discussed herein, the Court grants
in part and denies in part Estell's Motion and further
finds that appointment of counsel is not warranted here.
September 23, 2014, Estell pled guilty to four counts: (1)
conspiracy to commit Hobbs Act robbery under 18 U.S.C. 1951
(Count 1); (2) brandishing a firearm during and in relation
to a crime of violence-that crime being the Hobbs Act
conspiracy charged in Count 1 (Count 2); and (3) Hobbs Act
robbery (Counts 7, 9). (ECF Nos. 51, 80, 81.) On September
22, 2016, the Court sentenced Estell to 46 months on Counts
1, 7 and 9, and 84 months on Count 2, to be served
consecutive to the other three counts, resulting in a total
sentence of 130 months. (ECF Nos. 222, 223.)
interim, on June 26, 2015, the Supreme Court in Johnson
v. United States, v. United States, 135 S.Ct. 2551
(2015), struck down the residual clause of the Armed Career
Criminal Act (“ACC”) as unconstitutionally vague.
Even more pertinent to Estell's claim is that on April
17, 2018, the Supreme Court found the residual clause of 18
U.S.C. § 16(b) to be unconstitutionally vague.
Sessions v. Dimaya, 138 S.Ct. 1204 (2018). That
residual clause is identical to the residual clause in §
924(c). Compare 18 U.S.C. § 16(b) with 18
U.S.C. § 924(c)(3)(B).
12, 2017, Estell filed his Motion, challenging his conviction
on Count 2 on four grounds: (1) conspiracy to commit Hobbs
Act robbery is not a crime of violence under §
924(c)(3)(A) pursuant to Johnson; (2) §
924(c)(3)(B)'s residual clause is void under
Johnson; (3) Estell's habeas challenge does not
violate the terms of his plea agreement; and (4) counsel was
ineffective for failing to challenge Estell's conviction
of Count 2. (ECF No. 250 at 4-8.)
government asserts two waiver arguments-that Estell entered
an unconditional plea without challenging the factual basis
of the § 924(c) charge and waived his right to
collaterally challenge his conviction under § 2255 under
the plea agreement's waiver provision. (ECF No. 253 at
2-4.) Estell counters that his waiver cannot be knowing and
voluntary when his conviction of Count 2 is illegal. (ECF No.
254 at 3-4.) Estell has the better of the argument. Because
Johnson (and Dimaya) had not been decided
when Estell signed his plea agreement, he could not have
knowingly waived his right to challenge his conviction under
Johnson. United States v. Evans, No.
2:12-CR-00072-APG-CWH-1, 2017 WL 3337261, at *1 (D. Nev. Aug.
the government argues that Estell procedurally defaulted on
his claim by failing to raise it on direct appeal. (ECF No.
253 at 6-8.) Estell's Motion is based on
Johnson, but Dimaya was not decided at the
time he filed his Motion, and his Motion would have been
easily resolved had it been filed after Dimaya.
Estell's Motion was filed within one year from the
Supreme Court's declaration of a new substantive rule in
Dimaya. See Welch v. United States, 136 S.Ct. 1257,
1265 (2016) (holding that by finding the residual clause in
the ACC void for vagueness, Johnson declared a new
substantive rule and has retroactive effect in cases on
collateral challenges to a federal conviction). Thus, Estell
is not procedurally barred from asserting his habeas claims.
See United States v. Ebron, No.
2:12-CR-00072-APG-CWH-2, 2017 WL 3337260, at *2 (D. Nev. Aug.
3, 2017); United States v. Hunter,
2:12-CR-00132-JAD-CWH-1, 2017 WL 3159985, at *2 (D. Nev. July
the government argues that Johnson does not
invalidate the residual clause in 18 U.S.C. § 924(c)
because Johnson does not call into question other
statutes like § 924(c)(3)(B) which contains the phrase
“substantial risk.” (ECF No. 253 at 9-10.) The
government did not have the benefit of Dimaya when
it filed its brief. There is no question that the identical
residual clause in § 924(c) cannot withstand
constitutional challenge in light of Dimaya's
declaration that the identically worded residual clause in
§16(b) is void for vagueness.
statute that forms the predicate offense underlying
Estell's § 924(c) conviction in Count 2-18 U.S.C.
§ 924(c)(3)(B)-is unconstitutional. Because conspiracy
to commit Hobbs Act robbery (Count 1) is not a crime of
violence, Estell could not be convicted of the offense in
Count 2-brandishing a firearm during and in relation to a
crime of violence. Accordingly, Estell's conviction and
sentence for Count 2 will be vacated. However, because the
Court considered the mandatory minimum sentence in Count 2 in
imposing sentence in Counts 1, 7 and 9, the Court will set a
resentencing hearing to determine the appropriate sentence
for these remaining counts.
Court notes that the parties made several arguments and cited
to several cases not discussed above. The Court has reviewed
these arguments and cases and determines that they do not
warrant discussion or ...