Mays v. USA

Filing 12

ORDER ADOPTING 10 Report and Recommendation and DENYING Mays' Amended Motion to Vacate (Doc. 5 ). It is further ORDERED DENYING a certificate of appealability under Rule 11, Rules Governing §2255 Proceedings, for the reason that Mays has not made a substantial showing of the denial of a constitutional right under 28 U.S.C. §2253(c). Signed by Senior Judge Frederick J Martone on 04/19/2017. (KAS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Robert Lee Mays,
Petitioner,

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ORDER

v.

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No. CV-16-00501-PHX-FJM
CR-08-01218-1-PHX-FJM

USA,

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Respondent.

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The court has before it Mays' Amended Motion to Vacate under 28 U.S.C. §2255

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(Doc. 5), the government's Response (Doc. 7), Mays' Reply (Doc. 9), the Report and

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Recommendation (Doc. 10), and Mays' Objection to the Report and Recommendation

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(Doc. 11).
Mays contends that each of his robbery convictions cannot count under 18 U.S.C.
§924(e) because robbery is not a "violent felony" within the meaning of that section.
Relying on Johnson v. United States, 130 S.Ct. 1265 (2010), he contends that the use or

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threatened use of physical force required under Arizona law is insufficient to constitute
the use or threatened use of "violent force--that is capable of causing physical pain or
injury to another person." Id. at 1271.

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Relying on State v. Bishop, 144 Ariz. 521, 698 P.2d 1240 (1985), the magistrate
judge concluded that force "of such a nature as to show that it was intended to overpower

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the party robbed," Id. at 524, under Arizona law, is sufficient to cause physical pain or
injury to another person within the meaning of Johnson. Report and Recommendation at
10 (Doc. 10). Therefore, the magistrate judge concluded that at least four of Mays' prior

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convictions for robbery offenses satisfied 18 U.S.C. §924(e).
Mays disagrees, but fails to demonstrate how threatening to use force sufficient to
overpower the party robbed could possibly be insufficient to cause physical pain or injury
to another. We therefore overrule the Objections, and accept the magistrate judge's
recommended disposition (Doc. 10).
Accordingly, it is ORDERED DENYING Mays' Amended Motion to Vacate
(Doc. 5).
It is further ORDERED DENYING a certificate of appealability under Rule 11,

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Rules Governing §2255 Proceedings, for the reason that Mays has not made a substantial

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showing of the denial of a constitutional right under 28 U.S.C. §2253(c).

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Dated this 19th day of April, 2017.

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