United States District Court, D. Nevada
M. Navarro, District Judge.
before the Court is Petitioner Austin Joshua Peterson's
(“Petitioner”) Motion to Vacate, Set Aside, or
Correct Sentence Pursuant to 28 U.S.C. § 2255
(“2255 Motion”), (ECF Nos. 38, 39). The
Government filed a Response, (ECF No. 41), and Petitioner
filed a Reply, (ECF No. 42).
pending before the Court is Petitioner's Motion to Stay,
(ECF No. 48). The Government filed a Response, (ECF No. 49),
and Petitioner filed a Reply, (ECF No. 50). For the reasons
discussed below, the Court DENIES
Petitioner's 2255 Motion, and DENIES
Petitioner's Motion to Stay.
September 27, 2010, Petitioner pleaded guilty to Count One
and Count Eight, Armed Bank Robbery, in violation of 18
U.S.C. § 2113(a) and (d); Counts Three through Seven,
Interference with Commerce by Robbery (“Hobbs Act
Robbery”), in violation of 18 U.S.C. § 1951; Count
Nine, Brandishing a Firearm During and in Relation to a Crime
of Violence, in violation of 18 U.S.C. §§
924(c)(1)(C) and 924(c)(1)(A)(ii); and Counts Ten and Eleven,
Possession of a Stolen Firearm, in violation of 18 U.S.C.
§§ 922(j) and 924(a)(2), of the Superseding
Indictment, (ECF No. 15). (See Mins. of Proceedings,
ECF No. 23). The Court sentenced Petitioner to 93 months'
custody for Counts One, Three, Four, Five, Six, Seven, Eight,
and Ten, to be served concurrently; and 84 months'
custody for Count Nine, to run consecutively to the sentences
imposed for all other counts, for a total of 177 months. (J.,
ECF No. 31).
20, 2016, Petitioner filed an Abridged 2255 Motion, (ECF No.
38), followed by a comprehensive 2255 Motion, (ECF No. 39),
on December 7, 2016, arguing that his sentence violates due
process because it is based on an unconstitutionally vague
portion of 18 U.S.C. § 924(c). (See 2255 Mot.
6:13-10:22, ECF No. 39). 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. 6:13- 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 three weeks later, Petitioner
filed a Motion to Stay, (ECF No. 48), his case “until
the mandate in Blackstone issues or until the
[Supreme Court] resolves certiorari of Blackstone,
whichever is later.” (Mot. Stay 2:13-15, ECF No. 48).
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).
argues that his sentence for Count Nine 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 3:2-7, ECF No. 39). 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 unconstitutional.
Petitioner argues that his sentence based on Count Nine 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
7:15-8:8). 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- 19:18). 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.
19:14-18). 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. 38, 39).
the Court will not issue a certificate of appealability,
which is required for Petitioner to proceed with an appeal of
this Order. 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 ...