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Yates v. United States

United States District Court, W.D. Washington, Tacoma

August 15, 2019

MICHAEL ROGER YATES, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          RONALD B. LEIGHTON, UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court on Petitioner Yates's Motion to Vacate Set aside or Correct his Sentence under 28 U.S.C. § 2255 [Dkt. # 1] and on Yates Motion to Appoint Counsel [Dkt. # 4]. Yates was convicted on two counts of Brandishing a Firearm during a Crime of Violence (18 U.S.C. § 924(C)(1)(A)(ii)), predicated on two separate convictions for Armed Bank Robbery (28 U.S.C. § 2113(a) and (d)). He was sentenced on October 12, 2007. He appealed (though not on the grounds he asserts here) and the judgment was affirmed with a mandate dated December 18, 2008. The effective date[1] of this Motion is May 2, 2018.

         A. § 924(c)(3)(B)'s Unconstitutionality Does Not Entitle Yates to Habeas Relief.

         The Supreme Court has already held that the “crime of violence” language in the residual clause of the ACCA (18 U.S.C. § 924(e)) and the INA (18 U.S.C. § 16(b)) is unconstitutionally vague. See Johnson v. United States , __U.S.__, 135 S.Ct. 2551 (2015) and Sessions v. Dimaya, __U.S.__, 138 S.Ct. 1204 (April 17, 2018), respectively. Yates argues that similar language in 18 U.S.C. § 924(c)(3)(B), which authorizes heightened criminal penalties for using a firearm in connection with a federal “crime of violence, ” is similarly unconstitutional. Four days after the government filed its Answer [Dkt. #] to Yates's Petition, the Supreme Court agreed. United States v. Davis, __U.S.__, 139 S.Ct. 2319 (June 24, 2019). It held that 18 U.S.C. § 924(c)(3)(B)[2] is unconstitutionally vague.

         Accordingly, the government's argument that Johnson and Dimaya did not make §924(c)(3)(B) unconstitutional is moot.

         The government argues first that Yates's Petition is untimely. A petitioner seeking relief under § 2255 has one year from (1) his date of conviction, (2) the date on which a government-created impediment to making such a motion is removed, (3) the date on which the facts supporting the claims presented could have been discovered, or (4) “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” 28 U.S.C. § 2255(f).

         The government's primary timeliness argument is that even if Dimaya set out a new rule that applied to Yates (and it did not), he did not file his petition within a year of that opinion. But Davis did set out a new rule, under which Yates has a better claim. If anything, his petition is premature.

         Second, the government argues that Yates's claim is procedurally defaulted, because he did not ever argue that § 924(c)(3) was unconstitutionally vague, even though Justice Scalia had first forecast the vagueness problem six months before Yates was sentenced. Nor did Yates raise that issue in his appeal. “[T]o obtain collateral relief based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both (1) ‘cause' excusing his double procedural default, and (2) ‘actual prejudice' resulting from the errors of which he complains.” United States v. Frady, 456 U.S. 152, 167-68 (1982).

         “Cause” excusing a procedural default includes “a showing that the factual or legal basis for a claim was not reasonably available to counsel.” Murray v. Carrier, 477 U.S. 478, 488 (1986). A claim was not reasonably available if it is based on a Supreme Court decision that “explicitly overrule[d] one of [its] precedents.” Reed v. Ross, 468 U.S. 1, 17 (1984).

         “Actual prejudice” exists when there is a reasonable probability that the court would have imposed a lighter sentence without the error to which the petitioner failed to object. See Strickler v. Greene, 527 U.S. 263, 289 (1999).

         Yates does not address these issues, but the government's third and best argument[3]-that Yates's federal armed bank robbery convictions are “crimes of violence” under § 924(c)(3)(A), without reference to the now-unconstitutional §924(c)(3)(B)-makes it clear that Yates can show neither.

         Under 18 U.S.C. § 924(c)(3), the term “crime of violence” is an offense that “is a felony and - (A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another[.]”

         Regardless of the validity or constitutionality of § 924(c)(3)(B)'s residual definition, courts in this Circuit and elsewhere have consistently held that even unarmed bank robbery is a crime of violence under the elements or force clause of § 924(c)(3)(A). See United States v. Watson, 881 F.3d 782 (9th Cir. 2018). This Court so held in Armstrong v. United States, Cause No. 16-cv-5826RBL (Dkt. # 22, July 19, 2017), and that Order was affirmed (Dkt. #s 30 and 31 in that case). It relied on numerous other cases so holding:

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 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 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. 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 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 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 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 petitioner habeas relief because even if Section 924(c)'s residual clause is void- 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 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 petitioner habeas relief because armed bank robbery ‚Äúcategorically [qualifies] as a crime of violence ...

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