United States District Court, W.D. Washington, Tacoma
B. LEIGHTON, UNITED STATES DISTRICT JUDGE
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
of this Motion is May 2, 2018.
§ 924(c)(3)(B)'s Unconstitutionality Does Not
Entitle Yates to Habeas Relief.
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) is unconstitutionally vague.
the government's argument that Johnson and
Dimaya did not make §924(c)(3)(B)
unconstitutional is moot.
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.
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.
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).
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).
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
does not address these issues, but the government's third
and best argument-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
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
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
“categorically [qualifies] as a crime of violence ...