Rady v. USA

Filing 9

ORDER: The magistrate judge's recommended disposition (Doc. 6 ) is accepted.Accordingly, it is ORDERED DENYING Petitioner's Motion to Vacate (Doc. 1 ). It is further ORDERED DENYING a certificate of appealability under Rule 11, Rules Governing Section 2255 Proceedings, for the reason that Petitioner 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 2/15/2017. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Larry James Rady,
Petitioner,

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vs.

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United States of America,
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Respondent.
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No. CV 16-01294-PHX-FJM
CR 04-00585-PHX-FJM
ORDER

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The Court has before it Petitioner’s Motion to Vacate under 28 U.S.C. §2255 (Doc. 1), the

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Government’s Response (Doc. 4), and exhibits, Petitioner’s Reply (Doc. 5), the Report and

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Recommendation (Doc. 6), Petitioner’s Objections (Doc. 7), and the Government’s Response

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to the Objections (Doc. 8).

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Petitioner contends that his two armed robbery convictions under prior Arizona law are

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not violent felonies within the meaning of 18 U.S.C. §924(e)(2)(B)(i), which requires as an

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element, “the use, attempted use, or threatened use of physical force against the person of

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another.” Petitioner relies on Johnson v. United States (Curtis Johnson), 559 U.S. 133, 140

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(2010), which defined “physical force” to mean “force capable of causing physical pain or

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injury to another person.” The magistrate judge rejected this contention, in reliance on State

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v. Bishop, 698 P.2d 1240, 1243(Ariz. 1985), construing the prior Arizona robbery statute to

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require force “of such a nature as to show that it was intended to overpower the party

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robbed.”

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Petitioner objects to the R&R and contends that the prior Arizona robbery statute, A.R.S.
§13-641, included robbery broader than that defined in Bishop.

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Although the law related to what constitutes a violent felony is admittedly a mess, in this

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and other contexts, Petitioner’s contention splits the hair too finely under any interpretation.

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Petitioner was twice convicted of armed robbery, which required the use of a gun or other

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deadly weapon. One cannot commit armed robbery without using or threatening to use

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physical force against another, within the meaning of §924(e)(2)(B)(i), and the gun or other

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deadly weapon is “capable of causing physical pain or injury” within the meaning of Curtis

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Johnson. We thus accept the magistrate judge’s recommended disposition (Doc. 6).

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Accordingly, it is ORDERED DENYING Petitioner’s Motion to Vacate (Doc. 1). It is

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further ORDERED DENYING a certificate of appealability under Rule 11, Rules Governing

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Section 2255 Proceedings, for the reason that Petitioner has not made a substantial showing

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

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DATED this 15th day of February, 2017.

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