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 (## 159, 164, 167). The Government
filed a response (# 172) to which Petitioner replied (#173).
March 11, 2014, Petitioner pled guilty via a binding plea
agreement to one count of armed bank robbery under 18 U.S.C.
§ 2113(a) and (d) and one count of use of a weapon in
furtherance of a crime of violence under 18 U.S.C. §
924(c). On August 19, 2014, the Court sentenced Petitioner to
121 months- 37 months for his armed bank robbery conviction,
and 84 months for his 924(c) conviction, to run
consecutively. Petitioner had a total offense level of 19 and
a criminal history category of III. But for the 924(c)
sentencing enhancement, Petitioner would not have received
the additional 84-month consecutive sentence.
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 May 13,
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
Johnson invalidates § 924(c)(3)(B),
Petitioner's challenge to his conviction and sentence
under 18 U.S.C. § 924(c) still fails because armed bank
robbery is a qualifying crime of violence under
the constitutional 924(c)(3)(A) force clause. After
Petitioner filed his present motion, the Ninth Circuit
decided United States v. Watson, 881 F.3d 782 (9th
Cir. 2018), which foreclosed all Johnson challenges
regarding armed bank robbery under § 924(c). In
Watson, the court was faced with the question of
“whether armed bank robbery under federal law is a
crime of violence under 18 U.S.C. § 924(c).”
Watson, 881 F.3d at 783-84. In response to this
question, the Ninth Circuit straightforwardly stated,
“We hold that it is.” Id.
Ninth Circuit elaborated, stating, “[B]ank robbery
qualifies as a crime of violence because even its least
violent form ‘requires at least an implicit threat to
use the type of violent physical force necessary to meet the
Johnson standard.'” Id. at 785
(quoting U.S. v. Gutierrez, 876 F.3d 1254, 1257 (9th
Cir. 2017)). “Because bank robbery ‘by force and
violence, or by intimidation' is a crime of violence, so
too is armed bank robbery. A conviction for armed bank
robbery requires proof of all the elements of unarmed bank
robbery.” Id. at 786 (quoting U.S. v.
Coleman, 208 F.3d 786, 793 (9th Cir. 2000)). Thus, armed
bank robbery is definitively a crime of violence under 18
U.S.C. § 924(c), and Petitioner's challenge to his
corresponding conviction and imposed sentence fails.
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