United States District Court, D. Nevada
M. NAVARRO, DISTRICT JUDGE
before the Court is Petitioner Eric Tyrone Jackson’s
(“Petitioner”) Motion to Vacate, Set Aside, or
Correct Sentence Pursuant to 28 U.S.C. § 2255
(“2255 Motion”), (ECF Nos. 268, 286). The
Government filed a Response, (ECF No. 293), and Petitioner
filed a Reply, (ECF No. 295). For the reasons discussed
below, Petitioner’s 2255 Motion is
November 5, 2012, Petitioner pleaded guilty to Counts 3 and 4
of the Superseding Indictment: Armed Bank Robbery under 18
U.S.C. § 2113(a) and (d); and Using and Carrying a
Firearm under 18 U.S.C. § 924(c). (Mins. Proceedings,
ECF No. 68); (J., ECF No. 100). The Court sentenced
Petitioner to 20 months’ custody for Count 3, and 84
months’ custody for Count 4, to run consecutively to
one another, for a total of 104 months. (J., ECF No. 100).
24, 2016, Petitioner filed an Abridged 2255 Motion, (ECF No.
268), followed by a comprehensive 2255 Motion, (ECF No. 286),
on December 15, 2016, requesting relief based on the U.S.
Supreme Court’s decision in Johnson v. United
States, 135 S.Ct. 2551, 2557 (2015).
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 4 of the Superseding
Indictment for Using and Carrying a Firearm arose under an
unconstitutionally vague provision of 18 U.S.C. §
924(c). (2255 Motion at 3:2–8, ECF No. 286). Title 18
United States Code Section 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, 139 S.Ct. 2319, 2335–36 (2019). However,
the force clause, § 924(c)(3)(A), has not been deemed
Petitioner argues that his sentence based on Count 4 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). (See 2255 Motion
7:18–8:8). To make that argument, Petitioner points to
his predicate offense of Armed Bank Robbery in violation of
18 U.S.C. § 2113. (Id. 13:1– 19:16). 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 Section 924(c) must have arisen from
the unconstitutional residual clause. (See Id .
19:12–16). The Ninth Circuit in United States v.
Watson, 881 F.3d 782 (9th Cir.), cert. denied,
139 S.Ct. 203 (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 Petitioner ineligible for relief on the
grounds argued in his 2255 Motion. Accordingly, the Court
will deny Petitioner’s 2255 Motion, (ECF Nos. 268,
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, 950–51 (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 they satisfy the standard for issuance of
a certificate of appealability, and determines that the
issues do not meet that standard. The Court will therefore
deny Petitioner a certificate of appealability.
IS HEREBY ORDERED that Petitioner’s Motion to
Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C.