Dixon v. USA

Filing 28

ORDER ADOPTING 15 Report and Recommendation of the Magistrate Judge. ORDERED overruling Movant's Objections to Magistrate Judge's Report and Recommendation (Doc. 26 ). The previously imposed Order staying this matter be lifted. (Doc. [1 2]) ORDERED denying and dismissing Movant's Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 with prejudice (Doc. 3 ). ORDERED denying a Certificate of Appealability and leave to proceed in forma pauperis on appeal because Movant has not made a substantial showing of the denial of a constitutional right. FURTHER ORDERED directing the Clerk to enter judgment. Signed by Senior Judge Susan R Bolton on 12/6/18. (EJA)

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1 2 3 NOT FOR PUBLICATION 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Julius Darnell Dixon, Movant/Defendant, 10 11 v. 12 No. CV-16-04590-PHX-SRB CR-99-00516-PHX-SRB ORDER United States of America, 13 Respondent/Plaintiff. 14 15 Pending before the Court is Respondent United States of America’s (“Respondent”) 16 Motion to Vacate Stay and Motion to Dismiss Movant’s § 2255 Motion (“Mot.”) (Doc. 17 15). Respondent filed the instant Motion on April 5, 2018, asserting that the previously 18 imposed stay of proceedings concerning Movant’s armed robbery conviction under 18 19 U.S.C. § 924(c)(1) is no longer necessary. (Mot. at 1.) Movant filed his Response (“Resp.”) 20 (Doc. 16) on April 14, 2018. 21 The Magistrate Judge issued a Report and Recommendation on August 15, 2018, 22 recommending that the previously imposed stay be lifted, and that Movant’s Motion to 23 Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 be denied and dismissed 24 with prejudice. (See Doc. 25, R. & R.) The Report and Recommendation further 25 recommended that the Court deny a certificate of appealability and leave to proceed in 26 forma pauperis because Movant failed to make a substantial showing of the denial of a 27 constitutional right. Movant filed his Objections to the Report and Recommendation on 28 August 24, 2018. (See Doc. 26, Obj. to R. & R. (“Obj.”).) Having reviewed the record de 1 novo, the Court overrules Movant’s Objections and grants Respondent’s Motion. 2 I. 3 LEGAL STANDARDS A federal prisoner may seek relief under 28 U.S.C. § 2255 if his sentence was 4 “imposed in violation of the United States Constitution or the laws of the United States, . . 5 . was in excess of the maximum authorized by law, or is otherwise subject to collateral 6 attack.” 28 U.S.C. § 2255(a). When a prisoner moves for post-conviction relief, the court 7 “may accept, reject, or modify, in whole or in part, the findings or recommendations made 8 by the magistrate.” 28 U.S.C. § 636(b)(1). If a movant files timely objections to the report 9 and recommendation, the district court must make a de novo determination of those 10 portions of the report or specified proposed findings or recommendations to which 11 objection is made. Id. 12 II. DISCUSSION 13 In the underlying criminal matter, Movant pleaded guilty to one count of bank 14 robbery in violation of 18 U.S.C. § 2113(a), five counts of armed bank robbery in violation 15 of § 2113 (a) and (d), and one count of use of a firearm during and in relation to a crime of 16 violence – armed bank robbery in violation of § 924(c)(1). (CRDocs. at 70, 76.)1 Movant 17 was sentenced to a total of 300 months’ imprisonment. (Id. at 74.) 18 In his § 2255 Motion, Movant claims that his § 924(c) conviction must be vacated 19 as his predicate bank robbery offenses no longer qualify as crimes of violence within the 20 meaning of § 924(c)(3)(A) and (B), and the residual clause of § 924(c)(3)(B) is 21 unconstitutionally vague under Johnson v. United States.2 (Doc. 3, Mot. to Authorize 22 Successive Appl. for Relief Under 28 U.S.C. § 2255 (“§ 2255 Mot.”) at 7; CRDoc. at 134.) 23 Before addressing the merits of Movant’s claim, Respondent argues that the previously 24 imposed stay to await the Supreme Court’s decision in Lynch v. Dimaya (now Sessions v. 25 26 27 28 1 2 The documents in the underlying criminal matter will be referred to as “CRDoc.” 135 S. Ct. 2551 (2015). The Johnson II Court held that imposing an increased sentence under the residual clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), violated the Constitution’s guarantee of due process by denying fair notice to defendants and inviting arbitrary enforcement by judges. See id at 2557–58. (Johnson I was decided in 2010; Johnson II, cited by Movant, was decided in 2015.) -2- 1 Dimaya) and United States v. Begay is no longer required.3 (Mot. at 3.) Respondent is 2 correct. Dimaya has been decided and does not form a basis for relief. And a continued 3 stay to await a decision by the Ninth Circuit in Begay is unnecessary, as there is now 4 binding Ninth Circuit precedent directly addressing Movant’s claims. The Ninth Circuit, 5 in United States v. Gutierrez, recently reaffirmed prior precedent holding that “bank 6 robbery by intimidation . . . requires at least an implicit threat to use the type of violent 7 physical force necessary to meet the Johnson [I] standard.”4 Shortly thereafter, in United 8 States v. Watson, the Ninth Circuit held that armed bank robbery is a crime of violence 9 under § 924(c). 881 F. 3d 782, 786 (9th Cir. 2017), reh’g en banc denied, No. 16-15357 10 (Mar. 29, 2018) (“Because bank robbery ‘by force and violence, or by intimidation’ is a 11 crime of violence, so too is armed robbery.”). 12 In response, Movant misguidedly relies on United States v. Parnell, which fails to 13 rescue his argument in favor of continuing the stay for two reasons.5 (Resp. at 2.) Parnell 14 pre-dates both Gutierrez and Watson, portending that whatever conflict Movant seeks to 15 tease out is now in the law moot. Second, Parnell does not analyze the federal bank robbery 16 statute, but instead analyzes a Massachusetts robbery statute in conjunction with the 17 ACCA. See 818 F.3d at 979. Parnell explains that with respect to the actual force prong of 18 robbery under Massachusetts law, the degree of force used is immaterial (so long as the 19 victim is aware of it). See id. at 978. Such force, therefore, does not satisfy the requirement 20 of physical force under the ACCA. Id. at 981; see also id. at 979. 21 In the alternative, Movant requests that the Court grant a certificate of appealability 22 for the reasons set forth in United States v. Dawson.6 (Mot. at 3.) In Dawson, the District 23 Court found a tension between the Ninth Circuit’s holding in Watson [that when a 24 defendant negligently intimidates a victim, he may not be convicted of bank robbery], and 25 26 27 28 3 4 138 S. Ct. 1204 (2018); No. 14-10080 (9th Cir. filed Feb. 20, 2014). 876 F.3d 1254, 1257 (9th Cir. 2017), reaff’g, United States v. Selfa, 918 F.2d 749 (9th Cir. 1990). “A defendant cannot put a reasonable person in fear of bodily harm without threatening to use ‘force capable of causing physical pain or injury.’” Id. (quoting Johnson v. United States, 559 U.S. 133, 140 (2010)). 5 818 F.3d 974 (9th Cir. 2016). 6 See 300 F. Supp. 3d 1207, 1210 (D. Or. 2018). -3- 1 previous Ninth Circuit opinions on the mens rea requirement for a bank robbery conviction. 2 300 F. Supp. 3d at 1210. However, both cases cited in Dawson (and referenced by Movant), 3 United States v. Foppe and United States v. Yockel, were decided long before Johnson, 4 Gutierrez, or Watson. And, more importantly, both cases do not directly speak to the 5 question presented in Movant’s § 2255 Motion, namely, whether bank robbery constitutes 6 a crime of violence under the “force clause” of § 924(c). 7 III. CONCLUSION 8 Because Gutierrez and Watson are binding authority, the Court concludes that the 9 question motivating the continued stay in Movant’s underlying criminal proceedings is no 10 longer pending. The Court overrules Movant’s Objection and grants Respondent’s Motion. 11 The Court further denies and dismisses Movant’s § 2255 Motion with prejudice. 12 Additionally, because this Court denies and dismisses Movant’s constitutional 13 claims on the merit, and because Movant has not demonstrated that “reasonable jurists 14 would find the [Court’s] assessment of the constitutional claims debatable or wrong,” the 15 Court overrules Movant’s Objections and denies his request for a certificate of 16 appealability.7 Slack v. McDaniel, 529 U.S. 473, 484 (2000). 17 18 IT IS ORDERED overruling Movant’s Objections to Magistrate Judge’s Report and Recommendation (Doc. 26). 19 20 IT IS FURTHER ORDERED adopting the Report and Recommendation of the Magistrate Judge (Doc. 25). 21 22 IT IS FURTHER ORDERED that the previously imposed Order staying this matter be lifted. (Doc. 12.) 23 24 IT IS FURTHER ORDERED denying and dismissing Movant’s Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 with prejudice (Doc. 3). 25 IT IS FURTHER ORDERED denying a Certificate of Appealability and leave to 26 proceed in forma pauperis on appeal because Movant has not made a substantial showing 27 7 28 Although Movant cites to several pre-Watson cases to imply tension between Watson and in-Circuit, out-of-Circuit, and Supreme Court case law, such citations are not ultimately persuasive, most significantly, because Watson directly addresses the question at issue. (Obj. at 7–15.) -4- 1 2 of the denial of a constitutional right. IT IS FURTHER ORDERED directing the Clerk to enter judgment. 3 4 Dated this 6th day of December, 2018. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5-

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