1 HONORABLE RONALD B. LEIGHTON 2 3 4
5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT TACOMA 8 MICHAEL ROGER YATES, CASE NO. C19-5151RBL 9 Petitioner, ORDER 10 v. 11 UNITED STATES OF AMERICA, 12 Respondent. 13 14
15 THIS MATTER is before the Court on Petitioner Yates’s Motion to Vacate Set aside or 16 Correct his Sentence under 28 U.S.C. § 2255 [Dkt. # 1] and on Yates Motion to Appoint Counsel 17 [Dkt. # 4]. Yates was convicted on two counts of Brandishing a Firearm during a Crime of 18 Violence (18 U.S.C. § 924(C)(1)(A)(ii)), predicated on two separate convictions for Armed Bank 19 Robbery (28 U.S.C. § 2113(a) and (d)). He was sentenced on October 12, 2007. He appealed 20 (though not on the grounds he asserts here) and the judgment was affirmed with a mandate dated 21 December 18, 2008. The effective date1 of this Motion is May 2, 2018. 22 23 1 Yates filed his petition in the Ninth Circuit, apparently believing he had previously sought § 2255 relief. The Ninth 24 circuit determined that he had not, and transferred the case here. 1 A. § 924(c)(3)(B)’s Unconstitutionality Does Not Entitle Yates to Habeas Relief. 2 The Supreme Court has already held that the “crime of violence” language in the residual 3 clause of the ACCA (18 U.S.C. § 924(e)) and the INA (18 U.S.C. § 16(b)) is unconstitutionally 4 vague. See Johnson v. United States , ___ U.S. ___, 135 S. Ct. 2551 (2015) and Sessions v.
5 Dimaya, ___ U.S. ___, 138 S. Ct. 1204 (April 17, 2018), respectively. Yates argues that similar 6 language in 18 U.S.C. § 924(c)(3)(B), which authorizes heightened criminal penalties for using a 7 firearm in connection with a federal “crime of violence,” is similarly unconstitutional. Four days 8 after the government filed its Answer [Dkt. #] to Yates’s Petition, the Supreme Court agreed. 9 United States v. Davis, ___ U.S. ___, 139 S. Ct. 2319 (June 24, 2019). It held that 18 U.S.C. 10 § 924(c)(3)(B)2 is unconstitutionally vague. 11 Accordingly, the government’s argument that Johnson and Dimaya did not make 12 §924(c)(3)(B) unconstitutional is moot. 13 The government argues first that Yates’s Petition is untimely. A petitioner seeking relief 14 under § 2255 has one year from (1) his date of conviction, (2) the date on which a government-
15 created impediment to making such a motion is removed, (3) the date on which the facts 16 supporting the claims presented could have been discovered, or (4) “the date on which the right 17 asserted was initially recognized by the Supreme Court, if that right has been newly recognized 18 19
20 2 18 U.S.C. § 924(c)(3): “For purposes of this subsection the term “crime of violence” means an offense that is a felony and— 21 *** (B) that by its nature, involves a substantial risk that physical force against the person or 22 property of another may be used in the course of committing the offense.”
23 . 24 1 by the Supreme Court and made retroactively applicable to cases on collateral review.” 28 2 U.S.C. § 2255(f). 3 The government’s primary timeliness argument is that even if Dimaya set out a new rule 4 that applied to Yates (and it did not), he did not file his petition within a year of that opinion. But
5 Davis did set out a new rule, under which Yates has a better claim. If anything, his petition is 6 premature. 7 Second, the government argues that Yates’s claim is procedurally defaulted, because he 8 did not ever argue that § 924(c)(3) was unconstitutionally vague, even though Justice Scalia had 9 first forecast the vagueness problem six months before Yates was sentenced. Nor did Yates raise 10 that issue in his appeal. “[T]o obtain collateral relief based on trial errors to which no 11 contemporaneous objection was made, a convicted defendant must show both (1) ‘cause’ 12 excusing his double procedural default, and (2) ‘actual prejudice’ resulting from the errors of 13 which he complains.” United States v. Frady, 456 U.S. 152, 167–68 (1982). 14 “Cause” excusing a procedural default includes “a showing that the factual or legal basis
15 for a claim was not reasonably available to counsel.” Murray v. Carrier, 477 U.S. 478, 488 16 (1986). A claim was not reasonably available if it is based on a Supreme Court decision that 17 “explicitly overrule[d] one of [its] precedents.” Reed v. Ross, 468 U.S. 1, 17 (1984). 18 “Actual prejudice” exists when there is a reasonable probability that the court would have 19 imposed a lighter sentence without the error to which the petitioner failed to object. See Strickler 20 v. Greene, 527 U.S. 263, 289 (1999). 21 22 23
24 1 Yates does not address these issues, but the government’s third and best argument3—that 2 Yates’s federal armed bank robbery convictions are “crimes of violence” under § 924(c)(3)(A), 3 without reference to the now-unconstitutional §924(c)(3)(B)—makes it clear that Yates can show 4 neither.
5 Under 18 U.S.C. § 924(c)(3), the term “crime of violence” is an offense that “is a felony 6 and – (A) has as an element the use, attempted use, or threatened use of physical force against 7 the person or property of another[.]” 8 Regardless of the validity or constitutionality of § 924(c)(3)(B)’s residual definition, 9 courts in this Circuit and elsewhere have consistently held that even unarmed bank robbery is a 10 crime of violence under the elements or force clause of § 924(c)(3)(A). See United States v. 11 Watson, 881 F.3d 782 (9th Cir. 2018). This Court so held in Armstrong v. United States, Cause 12 No. 16-cv-5826RBL (Dkt. # 22, July 19, 2017), and that Order was affirmed (Dkt. #s 30 and 31 13 in that case). It relied on numerous other cases so holding: 14 Post-Johnson, at least three circuit courts have already engaged in this or a similar analysis to determine armed bank robbery satisfies § 924(c)’s force clause. See 15 United States v. McNeal, 818 F.3d 141, 157 (4th Cir.), cert. denied, 137 S. Ct. 164, 196 L. Ed. 2d 138 (2016), and cert. denied sub nom. Stoddard v. United 16 States, 137 S. Ct. 164, 196 L. Ed. 2d 138 (2016) (holding bank robbery and armed bank robbery are crimes of violence under the force clause); United States v. 17 McBride, 826 F.3d 293, 296 (6th Cir. 2016), cert. denied, 137 S. Ct. 830, 197 L. Ed.
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1 HONORABLE RONALD B. LEIGHTON 2 3 4
5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT TACOMA 8 MICHAEL ROGER YATES, CASE NO. C19-5151RBL 9 Petitioner, ORDER 10 v. 11 UNITED STATES OF AMERICA, 12 Respondent. 13 14
15 THIS MATTER is before the Court on Petitioner Yates’s Motion to Vacate Set aside or 16 Correct his Sentence under 28 U.S.C. § 2255 [Dkt. # 1] and on Yates Motion to Appoint Counsel 17 [Dkt. # 4]. Yates was convicted on two counts of Brandishing a Firearm during a Crime of 18 Violence (18 U.S.C. § 924(C)(1)(A)(ii)), predicated on two separate convictions for Armed Bank 19 Robbery (28 U.S.C. § 2113(a) and (d)). He was sentenced on October 12, 2007. He appealed 20 (though not on the grounds he asserts here) and the judgment was affirmed with a mandate dated 21 December 18, 2008. The effective date1 of this Motion is May 2, 2018. 22 23 1 Yates filed his petition in the Ninth Circuit, apparently believing he had previously sought § 2255 relief. The Ninth 24 circuit determined that he had not, and transferred the case here. 1 A. § 924(c)(3)(B)’s Unconstitutionality Does Not Entitle Yates to Habeas Relief. 2 The Supreme Court has already held that the “crime of violence” language in the residual 3 clause of the ACCA (18 U.S.C. § 924(e)) and the INA (18 U.S.C. § 16(b)) is unconstitutionally 4 vague. See Johnson v. United States , ___ U.S. ___, 135 S. Ct. 2551 (2015) and Sessions v.
5 Dimaya, ___ U.S. ___, 138 S. Ct. 1204 (April 17, 2018), respectively. Yates argues that similar 6 language in 18 U.S.C. § 924(c)(3)(B), which authorizes heightened criminal penalties for using a 7 firearm in connection with a federal “crime of violence,” is similarly unconstitutional. Four days 8 after the government filed its Answer [Dkt. #] to Yates’s Petition, the Supreme Court agreed. 9 United States v. Davis, ___ U.S. ___, 139 S. Ct. 2319 (June 24, 2019). It held that 18 U.S.C. 10 § 924(c)(3)(B)2 is unconstitutionally vague. 11 Accordingly, the government’s argument that Johnson and Dimaya did not make 12 §924(c)(3)(B) unconstitutional is moot. 13 The government argues first that Yates’s Petition is untimely. A petitioner seeking relief 14 under § 2255 has one year from (1) his date of conviction, (2) the date on which a government-
15 created impediment to making such a motion is removed, (3) the date on which the facts 16 supporting the claims presented could have been discovered, or (4) “the date on which the right 17 asserted was initially recognized by the Supreme Court, if that right has been newly recognized 18 19
20 2 18 U.S.C. § 924(c)(3): “For purposes of this subsection the term “crime of violence” means an offense that is a felony and— 21 *** (B) that by its nature, involves a substantial risk that physical force against the person or 22 property of another may be used in the course of committing the offense.”
23 . 24 1 by the Supreme Court and made retroactively applicable to cases on collateral review.” 28 2 U.S.C. § 2255(f). 3 The government’s primary timeliness argument is that even if Dimaya set out a new rule 4 that applied to Yates (and it did not), he did not file his petition within a year of that opinion. But
5 Davis did set out a new rule, under which Yates has a better claim. If anything, his petition is 6 premature. 7 Second, the government argues that Yates’s claim is procedurally defaulted, because he 8 did not ever argue that § 924(c)(3) was unconstitutionally vague, even though Justice Scalia had 9 first forecast the vagueness problem six months before Yates was sentenced. Nor did Yates raise 10 that issue in his appeal. “[T]o obtain collateral relief based on trial errors to which no 11 contemporaneous objection was made, a convicted defendant must show both (1) ‘cause’ 12 excusing his double procedural default, and (2) ‘actual prejudice’ resulting from the errors of 13 which he complains.” United States v. Frady, 456 U.S. 152, 167–68 (1982). 14 “Cause” excusing a procedural default includes “a showing that the factual or legal basis
15 for a claim was not reasonably available to counsel.” Murray v. Carrier, 477 U.S. 478, 488 16 (1986). A claim was not reasonably available if it is based on a Supreme Court decision that 17 “explicitly overrule[d] one of [its] precedents.” Reed v. Ross, 468 U.S. 1, 17 (1984). 18 “Actual prejudice” exists when there is a reasonable probability that the court would have 19 imposed a lighter sentence without the error to which the petitioner failed to object. See Strickler 20 v. Greene, 527 U.S. 263, 289 (1999). 21 22 23
24 1 Yates does not address these issues, but the government’s third and best argument3—that 2 Yates’s federal armed bank robbery convictions are “crimes of violence” under § 924(c)(3)(A), 3 without reference to the now-unconstitutional §924(c)(3)(B)—makes it clear that Yates can show 4 neither.
5 Under 18 U.S.C. § 924(c)(3), the term “crime of violence” is an offense that “is a felony 6 and – (A) has as an element the use, attempted use, or threatened use of physical force against 7 the person or property of another[.]” 8 Regardless of the validity or constitutionality of § 924(c)(3)(B)’s residual definition, 9 courts in this Circuit and elsewhere have consistently held that even unarmed bank robbery is a 10 crime of violence under the elements or force clause of § 924(c)(3)(A). See United States v. 11 Watson, 881 F.3d 782 (9th Cir. 2018). This Court so held in Armstrong v. United States, Cause 12 No. 16-cv-5826RBL (Dkt. # 22, July 19, 2017), and that Order was affirmed (Dkt. #s 30 and 31 13 in that case). It relied on numerous other cases so holding: 14 Post-Johnson, at least three circuit courts have already engaged in this or a similar analysis to determine armed bank robbery satisfies § 924(c)’s force clause. See 15 United States v. McNeal, 818 F.3d 141, 157 (4th Cir.), cert. denied, 137 S. Ct. 164, 196 L. Ed. 2d 138 (2016), and cert. denied sub nom. Stoddard v. United 16 States, 137 S. Ct. 164, 196 L. Ed. 2d 138 (2016) (holding bank robbery and armed bank robbery are crimes of violence under the force clause); United States v. 17 McBride, 826 F.3d 293, 296 (6th Cir. 2016), cert. denied, 137 S. Ct. 830, 197 L. Ed. 2d 72 (2017) (concluding bank robbery through intimidation is a crime of 18 violence because it “requires the threat to use physical force”); In re Hines, 824 F.3d 1334, 1337 (11th Cir. 2016) (concluding a conviction for armed bank 19 robbery “clearly meets” § 924(c)’s definition of a “crime of violence” because it includes a force element). And just as many district courts in the Ninth Circuit 20 have denied habeas relief on this ground. See United States v. Hearn, No. 06-CR- 133-LRH-VPC, 2017 WL 2974937, at *5 (D. Nev. July 12, 2017) (denying 21 petitioner habeas relief because even if Section 924(c)’s residual clause is void-
22 3 The government also argues that Yates cannot overcome his procedural default because Justice Scalia had already signaled the eventual end of the residual clause in various places, even though 23 it took 12 years for the rest of the Court to agree. It argues, somewhat counterintuitively, that even though the argument was doomed to fail in 2008, Yates had to raise it to preserve it. 24 1 for-vagueness, armed bank robbery remains a crime of violence under the force clause); United States of America v. Stain, No. 02- CR-201-LRH-NJK, 2017 WL 2 2974951, at *7 (D. Nev. July 12, 2017) (same); McFarland v. United States, No. CR 00-1025-JFW, 2017 WL 810267, at *5 (C.D. Cal. Mar. 1, 2017) (denying 3 petitioner habeas relief because armed bank robbery “categorically [qualifies] as a crime of violence under Section 924(c)(3)(A)”); United States v. Abdul-Samad, 4 No. 10-CR-2792-WQH, 2016 WL 5118456, at *5 (S.D. Cal. Sept. 21, 2016) (denying petitioner habeas relief because “[a]rmed bank robbery in violation of 18 5 U.S.C. § 2113 (a) and (d) is a categorical match to the elements/force clause of § 924(c)(3)(A)”). This Court agrees with its sister-courts and adopts their analyses. 6 [Dkt. #22 at 4]. 7 Yates’s convictions remain constitutional even after Davis because armed bank robbery 8 meets the definition of “crime of violence” in § 924(c)’s force clause, even if (and even after) 9 Davis invalidated its residual clause. Yates’s petition is denied, even if it specifically relied on 10 Davis. 11 B. Evidentiary Hearing. 12 The government argues, and the Court agrees, that there is no need for an evidentiary 13 hearing on Yates’s § 2255 petition. He has not plead, and even with an attorney could not 14 succeed, on a claim that his convictions were not for “crimes of violence” under § 924(c)(3)(A). 15 His Motion for Appointment of Counsel [Dkt. # 4] is therefore DENIED. 16 C. Certificate of Appealability. 17 A certificate of appealability shall not issue absent “a substantial showing of the denial of 18 a constitutional right.” 28 U.S.C. § 2253(c)(2). A petitioner satisfies this standard by 19 demonstrating that reasonable jurists could disagree with the court’s resolution of his 20 constitutional claims and that any dispositive procedural ruling is likewise debatable. See Miller- 21 El v. Cockrell, 537 U.S. 322, 336–38 (2003); see also Slack v. McDaniel, 529 U.S. 473, 484 22 (2000). Davis announced a new rule. The Court does not believe it helps Yates, but there will 23 24 1 presumably be a raft of new opinions in its wake. Because reasonable jurists could disagree as to 2 whether Davis entitles Yates to habeas relief, the Court will issue a Certificate of Appealability. 3 The habeas petition is DENIED. 4 IT IS SO ORDERED.
5 Dated this 15th day of August, 2019. 6 A
7 Ronald B. Leighton 8 United States District Judge 9 10 11
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