United States District Court, W.D. Washington, Seattle
C. COUGHENOUR UNITED STATES DISTRICT JUDGE
matter comes before the Court on Petitioner Wayne Neville
Morris' (“Morris”) motion to vacate, set
aside, or correct his sentence under 28 U.S.C. section 2255
(Dkt. No. 1), motion to present post-sentencing factors (Dkt.
No. 17), and motion for leave to amend his reply (Dkt. No.
Having thoroughly considered the parties' briefing and
the relevant record, the Court hereby DENIES the motions
(Dkt. Nos. 1, 17, 23) for the reasons explained below.
December 10, 1999, Morris was convicted of one count each of
the following felonies: Conspiracy to commit armed bank
robbery under 18 U.S.C. section 371, armed bank robbery under
18 U.S.C. section 2113(a) and (d), use of a firearm during a
crime of violence (armed bank robbery) under 18 U.S.C.
section 924(c)(1)(A), assault on a federal officer by means
and use of a dangerous weapon under 18 U.S.C. section 111,
and use of a firearm during a crime of violence (assault on a
federal officer) under 18 U.S.C. section 924(c)(1)(A)(iii).
See United States v. Morris, No. CR99-0174-JCC, Dkt.
Nos. 151, 217-1 (W.D. Wash. 1999). The Court sentenced Morris
to 528 months imprisonment. Id. at Dkt. No. 217-1.
Morris' two convictions under section 924(c) each carried
mandatory minimum sentences because the predicate offenses
(armed bank robbery and assault on a federal officer)
qualified as “crimes of violence” as defined in
that provision. Id.; 18 U.S.C. § 924(c)(3).
appealed his conviction and sentence, both of which were
affirmed by the Ninth Circuit Court of Appeals. See United
States v. Morris, 43 Fed.Appx. 150, 158 (9th Cir. 2002).
In 2004, Morris filed a habeas corpus petition pursuant to 28
U.S.C. section 2255 that challenged this Court's
jurisdiction over his criminal case. See Morris v. United
States of America, No. C04-0266-JCC, Dkt. No. 1 (W.D.
Wash. 2004). The Court denied his habeas petition.
Id. at Dkt. No. 38. The Court of Appeals denied
Morris' request for a certificate of appealability.
Id. at Dkt. No. 59.
2015, the United States Supreme Court held that the residual
clause contained in 18 U.S.C. section 924(e)(2)(b)(ii)
defining “violent felony” under the Armed Career
Criminal Act was unconstitutionally vague. Johnson v.
United States. 135 S.Ct. 2551, 2557 (2015)
(“Johnson II”). Based on Johnson
II, Morris filed a motion with the Ninth Circuit Court
of Appeals seeking leave to file a successive section 2255
petition. See No. CR99-0174-JCC, Dkt. No. 220. The
Court of Appeals granted Morris' motion, noting that he
made a prima facie showing for relief under Johnson II.
Id. at Dkt. No. 221.
successive section 2255 petition, Morris asks the Court to
extend the holding in Johnson II to invalidate a
similarly-worded clause found in section 924(c)(3)(B) that
underlies his convictions for crimes of violence-armed bank
robbery as charged in count 3 and assault on a federal
officer by means of a dangerous weapon as charged in count 5.
(Dkt. Nos. 1 at 2, 9 at 2-3, 21 at 4.)
Legal Standard for Section 2255 Petitions
state a cognizable 28 U.S.C. section 2255 claim, a petitioner
must assert that he or she is in custody in violation of the
Constitution or laws of the United States, that the district
court lacked jurisdiction, that the sentence exceeded the
maximum allowed by law, or that the sentence is otherwise
subject to collateral attack. 28 U.S.C. § 2255(a). A
habeas petitioner bears the burden to show by a preponderance
of the evidence that an error occurred. See Johnson v.
Zerbst, 304 U.S. 458, 468-69 (1938); Simmons v.
Blodgett, 110 F.3d 39, 41-42 (9th Cir. 1997).
Morris' Claims for Relief
claims that if the Court were to extend the holding in
Johnson II to invalidate the analogous residual
clause of section 924(c)(3)(B), then his convictions under
that section would have to be vacated because armed bank
robbery and assault on a federal officer by means of a
dangerous weapon would no longer meet the statutory
definition as a “crime of violence.” (Dkt. No. 1
at 4.) The Government asserts that Morris' petition is
both procedurally defective and without merit. (Dkt. No. 20
Court finds it is unnecessary to address the Government's
procedural arguments or to reach the question of whether
section 924(c)(3)(B) is unconstitutionally vague under
Johnson II. Under Ninth Circuit precedent,
Morris' convictions for armed bank robbery and assault on
a federal officer by means of a dangerous weapon are crimes
of violence as defined by section 924(c)(3)(A).
18 U.S.C. ...