1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 UNITED STATES OF AMERICA, ) 4 ) Plaintiff/Respondent, ) Case No.: 2:13-cr-00339-GMN-PAL-1 5 vs. ) ) ORDER 6 JASON MATTHEW ROMERO, ) 7 ) Defendant/Petitioner. ) 8 ) 9 Pending before the Court is Petitioner Jason Romero’s (“Petitioner’s”) First Motion to 10 Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (“First 2255 Motion”), (ECF 11 No. 38).1 12 Also pending before the Court is Petitioner’s Abridged Motion to Vacate, Set Aside, or 13 Correct Sentence under 28 U.S.C. § 2255 (“Abridged 2255 Motion”), (ECF No. 45).2 14 Also pending before the Court is Petitioner’s Second Motion to Vacate, Set Aside, or 15 Correct Sentence under 28 U.S.C. § 2255 (“Second 2255 Motion”), (ECF No. 46). The 16 Government filed a Response, (ECF No. 48), to which Petitioner filed a Reply, (ECF No. 49).3 17 For the reasons discussed below, the Court DENIES Petitioner’s First 2255 Motion, 18 Abridged 2255 Motion, and Second 2255 Motion. 19 20
21 1 Petitioner later filed a Notice of Voluntary Withdrawal of his non-Johnson claims as raised in his First 2255 22 Motion. (See Notice Voluntary Dismissal, ECF No. 44). In light of his voluntary withdrawal, the Court solely considers Petitioner’s Johnson claim in the following analysis. 23 2 Petitioner indicates, in his Abridged Motion to Vacate, that he filed the abridged motion to preserve his 24 Johnson claim for further briefing. (Abridged Mot. Vacate 1:17–2:6, ECF No. 45).
25 3 Petitioner also filed a Supplemental Brief, (ECF No. 75), pursuant to the Court’s Order requesting additional supplemental in light of potential new Ninth Circuit decisions. The Government filed a Response to Petitioner’s Supplemental Brief, (ECF No. 76). 1 I. BACKGROUND 2 On June 30, 2014, Petitioner pleaded guilty to Counts One, Three, Five, and Seven of 3 the Indictment: Interference with Commerce by Robbery, in violation of 18 U.S.C. § 1951; and 4 Count 8 of the Indictment: Carrying and Use of a Firearm During and in Relation to a Crime of 5 Violence, in violation of 18 U.S.C. § 924(c)(1)(A). (See Plea Agreement, ECF No. 30); (see 6 also Mins. Proceedings, ECF No. 29). The Court sentenced Petitioner to 60-months custody as 7 to Counts 1, 3, 5, and 7, per count, to run concurrent to each other, and 84-months custody as to 8 Count 8, to run consecutive to all other counts. (See J., ECF No. 37); (see also Mins. 9 Proceedings, ECF No. 35). 10 On June 26, 2015, the United States Supreme Court held that the residual clause in the 11 definition of a “violent felony” under the Armed Career Criminal Act (“ACCA”) violates due 12 process. See Johnson v. United States, 576 U.S. 591, 135 S. Ct. 2551 (2015). Petitioner 13 subsequently filed the First 2255 Motion, asserting that he is entitled to resentencing in light of 14 Johnson and further that counsel rendered ineffective assistance of counsel. (See First 2255 15 Mot., ECF No. 28). Petitioner then filed a Notice of Voluntary Dismissal of his non-Johnson 16 claims. (Notice of Voluntary Dismissal, ECF No. 44). In addition, Petitioner filed his Abridged 17 2255 Motion and his Second 2255 Motion. (Amended 2255 Mot., ECF No. 45); (Second 2255
18 Mot., ECF No. 46). 19 In April 2020, the Ninth Circuit in United States v. Dominguez held that a completed 20 Hobbs Act robbery, in violation of 18 U.S.C. §1951, is a crime of violence under the “force 21 clause” of Section 924(c)(3). 4 Dominguez, 954 F.3d 1251 (9th Cir. 2020). In light of the new 22 Ninth Circuit decision, the Court requested additional briefing, addressing any new applicable 23 24 4 The Ninth Circuit also determined that an attempted Hobbs Act robbery is also a crime of violence under the “force clause.” United States v. Dominguez, 954 F.3d 1251, 1255 (9th Cir. 2020). Dominguez filed a petition for 25 writ of certiorari, solely appealing whether an attempted Hobbs Act robbery is a crime of violence. United States v. Dominguez, 954 F.3d 1251 (9th Cir. 2020), petition for cert. filed, 80 U.S.L.W. 3463 (U.S. Jan. 21, 2021) (No. 20-1000) 1 Ninth Circuit rulings. (See Min. Order, ECF No. 74). Petitioner filed a Supplement to his 2 Second Motion to Vacate, (ECF No. 75), and the Government filed a Response, (ECF No. 76). 3 II. LEGAL STANDARD 4 Under 28 U.S.C. § 2255, a petitioner may file a motion requesting the sentencing Court 5 to vacate, set aside, or correct his sentence. 28 U.S.C. § 2255(a). Such a motion may be 6 brought on the following grounds: “(1) the sentence was imposed in violation of the 7 Constitution or laws of the United States; (2) the court was without jurisdiction to impose the 8 sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence 9 is otherwise subject to collateral attack.” Id.; see United States v. Berry, 624 F.3d 1031, 1038 10 (9th Cir. 2010). “[A] district court may deny a Section 2255 motion without an evidentiary 11 hearing only if the movant’s allegations, viewed against the record, either do not state a claim 12 for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal.” 13 United States v. Burrows, 872 F.2d 915, 917 (9th Cir. 1989). 14 III. DISCUSSION 15 In his Motion, Petitioner asserts that he is entitled to relief in light of the Supreme 16 Court’s decision in Johnson. (See generally Second 2255 Mot., ECF No. 46). Petitioner further 17 requests the Court grant him a certificate of appealability if the Court declines to find his
18 Section 924(c) conviction and sentence unconstitutional. (See Suppl. to Second 2255 Mot., 19 ECF No. 75). The Court addresses each argument in turn. 20 A. Motion to Vacate under Section 2255 21 Defendant challenges the constitutionality of his underlying conviction under 18 U.S.C. 22 § 924(c), arguing that his conviction is void because his underlying charge, a Hobbs Act 23 robbery, no longer qualifies as a “crime of violence” under Johnson. (Second 2255 Mot. 3:2– 24 8). The Ninth Circuit, however, has since held that a completed Hobbs Act robbery constitutes 25 a “crime of violence” under 18 U.S.C. § 924(c). Dominguez, 954 F.3d at 1251. Though 1 Dominguez ultimately filed a Petition for Writ of Certiorari, Dominguez solely appealed the 2 Ninth Circuit’s decision that an attempted Hobbs Act robbery qualifies as a crime of violence. 3 (Seventh Joint Status Report 2:5–8, ECF No. 73); see also United States v. Dominguez, 954 4 F.3d 1251 (9th Cir.
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1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 UNITED STATES OF AMERICA, ) 4 ) Plaintiff/Respondent, ) Case No.: 2:13-cr-00339-GMN-PAL-1 5 vs. ) ) ORDER 6 JASON MATTHEW ROMERO, ) 7 ) Defendant/Petitioner. ) 8 ) 9 Pending before the Court is Petitioner Jason Romero’s (“Petitioner’s”) First Motion to 10 Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (“First 2255 Motion”), (ECF 11 No. 38).1 12 Also pending before the Court is Petitioner’s Abridged Motion to Vacate, Set Aside, or 13 Correct Sentence under 28 U.S.C. § 2255 (“Abridged 2255 Motion”), (ECF No. 45).2 14 Also pending before the Court is Petitioner’s Second Motion to Vacate, Set Aside, or 15 Correct Sentence under 28 U.S.C. § 2255 (“Second 2255 Motion”), (ECF No. 46). The 16 Government filed a Response, (ECF No. 48), to which Petitioner filed a Reply, (ECF No. 49).3 17 For the reasons discussed below, the Court DENIES Petitioner’s First 2255 Motion, 18 Abridged 2255 Motion, and Second 2255 Motion. 19 20
21 1 Petitioner later filed a Notice of Voluntary Withdrawal of his non-Johnson claims as raised in his First 2255 22 Motion. (See Notice Voluntary Dismissal, ECF No. 44). In light of his voluntary withdrawal, the Court solely considers Petitioner’s Johnson claim in the following analysis. 23 2 Petitioner indicates, in his Abridged Motion to Vacate, that he filed the abridged motion to preserve his 24 Johnson claim for further briefing. (Abridged Mot. Vacate 1:17–2:6, ECF No. 45).
25 3 Petitioner also filed a Supplemental Brief, (ECF No. 75), pursuant to the Court’s Order requesting additional supplemental in light of potential new Ninth Circuit decisions. The Government filed a Response to Petitioner’s Supplemental Brief, (ECF No. 76). 1 I. BACKGROUND 2 On June 30, 2014, Petitioner pleaded guilty to Counts One, Three, Five, and Seven of 3 the Indictment: Interference with Commerce by Robbery, in violation of 18 U.S.C. § 1951; and 4 Count 8 of the Indictment: Carrying and Use of a Firearm During and in Relation to a Crime of 5 Violence, in violation of 18 U.S.C. § 924(c)(1)(A). (See Plea Agreement, ECF No. 30); (see 6 also Mins. Proceedings, ECF No. 29). The Court sentenced Petitioner to 60-months custody as 7 to Counts 1, 3, 5, and 7, per count, to run concurrent to each other, and 84-months custody as to 8 Count 8, to run consecutive to all other counts. (See J., ECF No. 37); (see also Mins. 9 Proceedings, ECF No. 35). 10 On June 26, 2015, the United States Supreme Court held that the residual clause in the 11 definition of a “violent felony” under the Armed Career Criminal Act (“ACCA”) violates due 12 process. See Johnson v. United States, 576 U.S. 591, 135 S. Ct. 2551 (2015). Petitioner 13 subsequently filed the First 2255 Motion, asserting that he is entitled to resentencing in light of 14 Johnson and further that counsel rendered ineffective assistance of counsel. (See First 2255 15 Mot., ECF No. 28). Petitioner then filed a Notice of Voluntary Dismissal of his non-Johnson 16 claims. (Notice of Voluntary Dismissal, ECF No. 44). In addition, Petitioner filed his Abridged 17 2255 Motion and his Second 2255 Motion. (Amended 2255 Mot., ECF No. 45); (Second 2255
18 Mot., ECF No. 46). 19 In April 2020, the Ninth Circuit in United States v. Dominguez held that a completed 20 Hobbs Act robbery, in violation of 18 U.S.C. §1951, is a crime of violence under the “force 21 clause” of Section 924(c)(3). 4 Dominguez, 954 F.3d 1251 (9th Cir. 2020). In light of the new 22 Ninth Circuit decision, the Court requested additional briefing, addressing any new applicable 23 24 4 The Ninth Circuit also determined that an attempted Hobbs Act robbery is also a crime of violence under the “force clause.” United States v. Dominguez, 954 F.3d 1251, 1255 (9th Cir. 2020). Dominguez filed a petition for 25 writ of certiorari, solely appealing whether an attempted Hobbs Act robbery is a crime of violence. United States v. Dominguez, 954 F.3d 1251 (9th Cir. 2020), petition for cert. filed, 80 U.S.L.W. 3463 (U.S. Jan. 21, 2021) (No. 20-1000) 1 Ninth Circuit rulings. (See Min. Order, ECF No. 74). Petitioner filed a Supplement to his 2 Second Motion to Vacate, (ECF No. 75), and the Government filed a Response, (ECF No. 76). 3 II. LEGAL STANDARD 4 Under 28 U.S.C. § 2255, a petitioner may file a motion requesting the sentencing Court 5 to vacate, set aside, or correct his sentence. 28 U.S.C. § 2255(a). Such a motion may be 6 brought on the following grounds: “(1) the sentence was imposed in violation of the 7 Constitution or laws of the United States; (2) the court was without jurisdiction to impose the 8 sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence 9 is otherwise subject to collateral attack.” Id.; see United States v. Berry, 624 F.3d 1031, 1038 10 (9th Cir. 2010). “[A] district court may deny a Section 2255 motion without an evidentiary 11 hearing only if the movant’s allegations, viewed against the record, either do not state a claim 12 for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal.” 13 United States v. Burrows, 872 F.2d 915, 917 (9th Cir. 1989). 14 III. DISCUSSION 15 In his Motion, Petitioner asserts that he is entitled to relief in light of the Supreme 16 Court’s decision in Johnson. (See generally Second 2255 Mot., ECF No. 46). Petitioner further 17 requests the Court grant him a certificate of appealability if the Court declines to find his
18 Section 924(c) conviction and sentence unconstitutional. (See Suppl. to Second 2255 Mot., 19 ECF No. 75). The Court addresses each argument in turn. 20 A. Motion to Vacate under Section 2255 21 Defendant challenges the constitutionality of his underlying conviction under 18 U.S.C. 22 § 924(c), arguing that his conviction is void because his underlying charge, a Hobbs Act 23 robbery, no longer qualifies as a “crime of violence” under Johnson. (Second 2255 Mot. 3:2– 24 8). The Ninth Circuit, however, has since held that a completed Hobbs Act robbery constitutes 25 a “crime of violence” under 18 U.S.C. § 924(c). Dominguez, 954 F.3d at 1251. Though 1 Dominguez ultimately filed a Petition for Writ of Certiorari, Dominguez solely appealed the 2 Ninth Circuit’s decision that an attempted Hobbs Act robbery qualifies as a crime of violence. 3 (Seventh Joint Status Report 2:5–8, ECF No. 73); see also United States v. Dominguez, 954 4 F.3d 1251 (9th Cir. 2020), petition for cert. filed, 80 U.S.L.W. 3463 (U.S. Jan. 21, 2021) (No. 5 20-1000). Therefore, the Ninth Circuit’s decision regarding a completed Hobbs Act robbery 6 remains authoritative. 7 In the present case, Petitioner pleaded guilty to four counts of completed Hobbs Act 8 robbery. (See generally Plea Agreement, ECF No. 30). The Ninth Circuit’s holding in 9 Dominguez thus forecloses Petitioner’s argument that a completed Hobbs Act robbery is not a 10 crime of violence. Dominguez, 954 F.3d at 1255 (“In light of recent Supreme Court cases, we 11 also reiterate our previous holding that Hobbs Act armed robbery is a crime of violence for 12 purposes of 18 U.S.C. § 924(c)(3)(A).”); see also United States v. Jones, 848 F. App’x 288, 13 289 (9th Cir. 2021) (reaffirming that Hobbs Act robbery is a crime of violence under § 924(c)). 14 Notably, Petitioner concedes that the “Ninth Circuit has not issued an applicable decision 15 pertaining specifically to Hobbs Act robbery since United States v. Dominguez.” (Suppl. to 16 2255 Mot. 1:5–9). 17 Petitioner attempts to circumvent the Ninth Circuit’s decision in Dominguez by arguing
18 that Dominguez conflicts with existing Supreme Court and Ninth Circuit precedent. (Id. 2:7– 19 3:23). Specifically, Petitioner argues that the Ninth Circuit in Dominguez failed to consider a 20 “realistic scenario” when analyzing whether the statute was facially overbroad, as is required 21 under Ninth Circuit precedent in Descamps v. United States, 570 U.S. 254, 265 (2013), and 22 United States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007). (Id. 2:24– 3:23). The Ninth Circuit, 23 however, explicitly rejected this argument in United States v. Hall, 845 F. App’x 644, 645 n.3 24 (9th Cir. 2021). There, the Ninth Circuit reiterated that the “circuit’s published opinions on the 25 law are authoritative once issued and remain binding on subsequent panels of this court.” Id. 1 (citing Langere v. Verizon Wireless Servs., LLC, 983 F.3d 1115, 1121 (9th Cir. 2020) (citation 2 omitted)). In light of the existing Ninth Circuit precedent, the Court accordingly denies 3 Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence under Section 2255. 4 B. Certificate of Appealability 5 To proceed with an appeal of this Order, the Court must issue a certificate of 6 appealability. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 7 435 F.3d 946, 950–51 (9th Cir. 2006); see also United States v. Mikels, 236 F.3d 550, 551–52 8 (9th Cir. 2001). This means that Petitioner must make “a substantial showing of the denial of a 9 constitutional right.” 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483–84 (2000). 10 He bears the burden of demonstrating that the issues are debatable among jurists of reason; that 11 a court could resolve the issues differently; or that the questions are adequate to deserve 12 encouragement to proceed further. Slack, 529 U.S. at 483–84. 13 The Court has considered the issues raised by Petitioner with respect to whether they 14 satisfy the standard for issuance of a certificate of appealability, and determines that the issues 15 do not meet that standard. Petitioner requests the Court issue a certificate of applicability if the 16 Court denies relief. (Suppl. to 2255 Mot. 3:24–4:26). Specifically, Petitioner argues that “the 17 Ninth Circuit has not yet resolved [Petitioner’s] argument that Dominguez conflicts with earlier,
18 binding Supreme Court and Ninth Circuit precedent.” (Id. 4:17–19). The Ninth Circuit, 19 however, directly denied Petitioner’s argument in Hall. 845 F. App’x at 645 n.3. Thus, the 20 Court denies Petitioner a certificate of appealability. 21 /// 22 23 24 25 1 V. CONCLUSION 2 IT IS HEREBY ORDERED that Petitioner’s First 2255 Motion, (ECF No. 38), is 3 DENIED. 4 IT IS FURTHER ORDERED that Petitioner’s Abridged 2255 Motion, (ECF No. 45), 5 is DENIED. 6 IT IS HEREBY ORDERED that Petitioner’s Second 2255 Motion, (ECF No. 46), is 7 DENIED. 8 Dated this _1__ day of November, 2021. 9 10 11 ___________________________________ Gloria M. Navarro, District Judge 12 UNITED STATES DISTRICT COURT 13 14 15 16 17 18 19 20 21 22 23 24 25