United States District Court, D. Nevada
M. Navarro, Chief Judge United States District Court.
before the Court is Petitioner Terrell McBride's
(“Petitioner's”) Motion to Vacate, Set Aside,
or Correct Sentence Pursuant to 28 U.S.C. § 2255
(“2255 Motion”), (ECF No. 108). The Government
filed a Response, (ECF No. 111), and Petitioner filed a
Reply, (ECF No. 113). For the reasons stated below, the Court
DENIES Petitioner's 2255 Motion.
September 8, 2011, Petitioner pleaded guilty to Counts 1 and
2 of the Superseding Indictment: (1) Armed Bank Robbery, in
violation of 18 U.S.C. § 2113(a) and (d); and (2)
Possession, Use, and Carrying of a Firearm During and in
Relation to a Crime of Violence, in violation of 18 U.S.C.
§ 924(c). (Mins. Proceedings, ECF No. 51); (J., ECF No.
61). The Court sentenced Petitioner to 47 months custody for
Count 1, and 84 months custody for Count 2, to run
consecutively to one another, for a total of 131 months. (J.,
ECF No. 61).
December 14, 2011, Petitioner appealed his sentence to the
Ninth Circuit Court of Appeals, (Notice Appeal, ECF No. 62),
which the circuit dismissed based on appellate waivers made
in Petitioner's guilty plea. (Mem. USCA, ECF No. 84).
Petitioner thereafter filed his first motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §
2255, (ECF No. 89). The Court denied that motion on April 9,
2014. (Order, ECF No. 100).
25, 2016, Petitioner filed a motion for relief based on the
U.S. Supreme Court's decision in Johnson v. United
States, 135 S.Ct. 2551, 2557 (2015). (Mot. Relief, ECF
No. 101). The Court accordingly appointed the Federal Public
Defender's Office (“FPD”) to determine
whether Petitioner qualified for relief under
Johnson, and whether he could proceed with a second
motion pursuant to 28 U.S.C. § 2255. (Min. Order, ECF
No. 102). Petitioner, assisted by the FPD, thereafter filed a
second motion to vacate his sentence pursuant to § 2255,
(ECF No. 105), after receiving authorization to proceed from
the Ninth Circuit Court of Appeals. (See USCA Order,
ECF No. 107); (2255 Motion, ECF No. 108).
28 U.S.C. § 2255, a petitioner may file a motion
requesting the Court which imposed sentence to vacate, set
aside, or correct the sentence. 28 U.S.C. § 2255(a).
Such a motion may be brought on the following grounds:
“(1) the sentence was imposed in violation of the
Constitution or laws of the United States; (2) the court was
without jurisdiction to impose the sentence; (3) the sentence
was in excess of the maximum authorized by law; or (4) the
sentence is otherwise subject to collateral attack.”
Id.; see United States v. Berry, 624 F.3d
1031, 1038 (9th Cir. 2010). When a petitioner seeks relief
pursuant to a right newly recognized by a decision of the
United States Supreme Court, a one-year statute of
limitations applies. 28 U.S.C. § 2255(f)(3). That
one-year limitation begins to run from “the date on
which the right asserted was initially recognized by the
Supreme Court.” Id. § 2255(f)(3).
argues that his sentence for Count 2 of the Superseding
Indictment for Possession, Use, and Carrying of a Firearm
During and in Relation to a Crime of Violence arose under an
unconstitutionally vague provision of 18 U.S.C. §
924(c). (2255 Motion at 3:2- 7, ECF No. 108). Title 18 U.S.C.
§ 924(c) criminalizes the use or carrying of a firearm
in relation to a “crime of violence, ” and it
imposes mandatory minimum sentences that must run consecutive
to any other sentence. An offense may qualify as a crime of
violence under § 924(c) through either of two clauses:
§ 924(c)(3)(A) or § 924(c)(3)(B). Section
924(c)(3)(A), also known as the statute's “force
clause, ” applies if an individual is convicted of a
predicate crime that “has as an element the use,
attempted use, or threatened use of physical force against
the person or property of another.” By contrast, §
924(c)(3)(B), known as the “residual clause” of
the statute, is much broader; it applies if the individual is
convicted of any predicate felony offense “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.” The U.S. Supreme
Court recently invalidated § 924(c)(3)(B) after holding
that its language is unconstitutionally vague. See United
States v. Davis, No. 18-431, 2019 WL 2570623, at *13
(U.S. June 24, 2019). However, the force clause, §
924(c)(3)(A), has not been deemed unconstitutional.
argues that his sentence based on Count 2 of the Indictment
violates due process because the Court imposed it under the
unconstitutionally vague residual clause, 18 U.S.C. §
924(c)(3)(B). (2255 Motion at 2-28, ECF No. 120-1). To make
that argument, Petitioner points to his predicate offense of
Armed Bank Robbery in violation of 18 U.S.C. § 2113.
(2255 Motion 13:22-20:12). He claims that Armed Bank Robbery
is not a crime of violence by its elements, and thus his
sentence enhancement for that predicate crime under 924(c)
must have arisen from the unconstitutional residual clause.
(Id. at 23).
Ninth Circuit in United States v. Watson, 881 F.3d
782, 786 (9th Cir.), cert. denied, 139 S.Ct. 203, 202 L.Ed.2d
139 (2018), cert. denied, 138 S.Ct. 1602, 200 L.Ed.2d 785
(2018), rejected the same arguments made by Petitioner when
it held that federal armed bank robbery constitutes a crime
of violence by its elements. 881 F.3d at 786.
Petitioner's conviction for Armed Bank Robbery therefore
implicates the force clause, 18 U.S.C. § 924(c)(3)(A),
not the unconstitutional residual clause-rendering him
ineligible for relief on the grounds argued in his 2255
proceed with an appeal of this Order, Petitioner must receive
a certificate of appealability from the Court. 28 U.S.C.
§ 2253(c)(1); Fed. R. App. P. 22; 9th Cir. R. 22-1;
Allen v. Ornoski, 435 F.3d 946, 950-951 (9th Cir.
2006); see also United States v. Mikels, 236 F.3d
550, 551-52 (9th Cir. 2001). This means that Petitioner must
make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2);
Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). He
bears the burden of demonstrating that the issues are
debatable among jurists of reason; that a court could resolve
the issues differently; or that the questions are adequate to
deserve encouragement to proceed further. Slack, 529
U.S. at 483-84.
Court has considered the issues raised by Petitioner, with
respect to whether it satisfies the standard for issuance of
a certificate of appealability, and determines that the
issues do not meet that standard. The ...