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United States v. Morales

United States District Court, D. Nevada

September 23, 2019

UNITED STATES OF AMERICA, Respondent/Plaintiff,
v.
FRANK EDWARD MORALES, Petitioner/Defendant.

          ORDER

          Gloria M. Navarro, District United States District Judge.

         Pending 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).

         Also 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.

         I. BACKGROUND

         On 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 provides that:

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 added).

         Petitioner 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. (Id.).

         On June 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).

         After 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.

         II. LEGAL STANDARD

         Under 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).

         III. DISCUSSION

         In his 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 ...


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