United States District Court, D. Nevada
M. Navarro, District United States District Judge.
before the Court is Petitioner Frank Edward Morales’s
(“Petitioner”) Motion to Vacate, Set Aside, or
Correct Sentence Pursuant to 28 U.S.C. § 2255
(“2255 Motion”), (ECF Nos. 105, 108). The
Government filed a Response, (ECF No. 111), and Petitioner
filed a Reply, (ECF No. 114).
pending before the Court is Petitioner’s Motion to
Stay, (ECF No. 129). The Government filed a Response, (ECF
No. 131), and Petitioner filed a Reply, (ECF No. 133). For
the reasons discussed below, the Court
DENIES Petitioner’s 2255 Motion, and
DENIES Petitioner’s Motion to Stay.
December 23, 2009, Petitioner pleaded guilty to Counts One,
Two, and Three of the Superseding Indictment: (1) Conspiracy
to Interfere with Commerce by Robbery (“Hobbs Act
Conspiracy”), in violation of 18 U.S.C. § 1951;
(2) Armed Bank Robbery, in violation of 18 U.S.C. §
2113(a) and (d); and (3) Brandishing a Firearm During and in
Relation to a Crime of Violence, in violation of 18 U.S.C.
§ 924(c). (Mins. Proceedings, ECF No. 46); (J., ECF No.
84). Count Three of the Superseding Indictment specifically
On or about June 16, 2009, in the State and Federal District
of Nevada, FRANK EDWARD MORALES . . . did knowingly carry a
revolver, . . . during and in relation to crime[s] of
violence, . . .and did knowingly possess and brandish said
firearm in furtherance of . . . said crimes of violence,
namely, violations of Title 18, United States Code, Section
1951(a), Conspiracy to Interfere with Commerce by Robbery
(commonly referred to as “Hobbs Act Conspiracy”),
and Title 18, United States Code, Section 2113, Armed Bank
Robbery, as further set forth in Counts One and Two
of this Indictment.
(Superseding Indictment 2:20–3:7, ECF No. 33) (emphasis
was sentenced to a total of 234 months’ custody. (J.,
ECF No. 84). That total consisted of two parts: 150
months’ custody as to Counts One and Two (specifically,
two sentences each of 150 months to be served concurrently),
and 84 months’ custody for Count Three, to be served
consecutively to Count One and Two’s sentences.
20, 2016, Petitioner filed an Abridged 2255 Motion, (ECF No.
105), followed by a comprehensive 2255 Motion, (ECF No. 108),
on December 20, 2016, arguing that his sentence violates due
process because it is based on an unconstitutionally vague
portion of 18 U.S.C. § 924(c). (2255 Mot.
6:9–13:18, ECF No. 108). Petitioner’s vagueness
argument relies on Johnson v. United States, 135
S.Ct. 2551 (2015). In Johnson, the U.S. Supreme
Court ruled that the residual clause of the Armed Career
Criminal Act (ACCA) is unconstitutionally vague.
Johnson, 135 S.Ct. at 2557. Petitioner accordingly
points to language in § 924(c)’s residual clause,
which is identical to that of the ACCA’s residual
clause, for the proposition that both provisions, and any
convictions and sentences arising therefrom, are invalid.
(2255 Mot. 6:12– 7:14).
the ruling in Johnson, the Ninth Circuit issued its
decision in United States v. Blackstone, 903 F.3d
1020, 1028–29 (9th Cir. 2018), cert. denied,
139 S.Ct. 2762 (2019). As pertinent to this case, the Ninth
Circuit held that Johnson had not been extended to
sentences imposed pursuant to § 924(c). Id. at
1028. Consequently, a 2255 motion seeking to invalidate a
§ 924 conviction based on Johnson, would
therefore be untimely. Id. at 1028, 1029 (“The
Supreme Court may hold in the future that Johnson
extends to sentences imposed . . . pursuant to [§
924(c)], but until then [the petitioner’s] motion is
untimely.”). Roughly one month later, Petitioner filed
a Motion to Stay, (ECF No. 129), his case “until the
mandate issues in Blackstone, or until the [Supreme
Court] resolves certiorari of Blackstone,
whichever is later.” (Mot. Stay 2:12–14, ECF No.
129). This Order now follows.
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).
2255 Motion, Petitioner challenges his sentence for Count
Three, Brandishing a Firearm During a Crime of Violence.
(See 2255 Mot. 10:17–18, 12:20–21:26).
According to Petitioner, the sentence is based on an