Hoagland v. USA

Filing 21

ORDER the Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Document 167) filed in CR 01-1629 TUC DCB and (Document 1 ) filed in CV 16-806 TUC DCB is DENIED. Civil case number CV 16- 806 TUC-DCB is DISMISSED with prejudice. The Clerk of the Court shall enter judgment accordingly. IT IS FURTHER ORDERED that a certificate of appealability as to his claim that federal bank robbery is not a crime of violence under 18 U.S.C. § 924(c) is DENIED. Signed by Senior Judge David C Bury on 3/25/2019. (See attached Order for complete information)(DLC)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jeffrey Charles Hoagland,
Petitioner,

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v.

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USA,

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No. CV-16-00806-TUC-DCB
(CR-01-1629-TUC- DCB)
ORDER

Respondent.

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June 6, 2016, Plaintiff filed a Motion to Vacate, Set Aside, or Correct Sentence

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pursuant to 28 U.S.C. § 2255. (Motion (Doc. 1)). After being stayed pending a decision

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by the Supreme Court in Sessions v. Dimaya, 138 S. Ct. 1208 (2018), the motion was fully

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briefed August 10, 2018. In the interim, the Ninth Circuit issued an opinion in United

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States v. Watson, 881 F.3d 782, 783-84 (9th Cir. 2018) which is binding precedent upon

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which the Court relies and denies the Motion. On August 10, 2018, when the Petitioner

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filed the Reply, he asked the Court to issue a certificate of appealability if it denies the

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Petition because a Petition for Writ of Certiorari was submitted in Watson to the United

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States Supreme Court. That petition has now been denied. Watson v. United States, 139 S.

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Ct. 203 (2018). Watson is directly on point with this case and requires denial of Petitioner’s

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habeas motion. The Court will not issue a certificate of appealability.

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BACKGROUND

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Petitioner was charged and convicted by a jury for bank robbery in violation of

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U.S.C. § 2113(a), with use of a deadly weapon or destructive device by threatening to use

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a hand grenade during a crime of violence in violation of 924(c)(1)(A). The Court

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sentenced the Defendant to 45 months for Count One, bank robbery, and 360 months for

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Count Two, for the use of a deadly weapon during a crime of violence.

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Petitioner challenges the constitutionality of his sentence based on the Supreme

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Court's decisions in Johnson v. United States, 135 S. Ct. 2551 (2015) and Sessions v.

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Dimaya, 138 S. Ct. 1208 (2018). In Johnson, the Supreme Court invalidated a prisoner's

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sentence under the Armed Career Criminal Act (ACCA) because the definition of “violent

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felony” for a predicate crime that “otherwise involves conduct that presents a serious

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potential risk of physical injury to another” was unconstitutionally vague. Johnson, 135 S.

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Ct. at 2557; 18 U.S.C. § 924(e)(2)(b)(ii). The Court in Dimaya invalidated a similarly-

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worded definition of “crime of violence” in the Immigration and Nationality Act (“INA”)

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because it likewise “devolv[ed] into guesswork and intuition, invited arbitrary

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enforcement, and failed to provide fair notice.” Dimaya, 138 S. Ct. at 1223; 18 U.S.C. §

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16(b).

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Petitioner challenges his sentence for Count Two, use of a deadly weapon or

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destructive device during a “crime of violence,” because the definition of the predicate

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“crime of violence” in § 924(c) is unconstitutional following Johnson and Dimaya.

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ANALYSIS

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Petitioner argues that bank robbery should no longer be considered a predicate

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“crime of violence” for purposes of § 924(c)(3) because its residual clause, subsection B,

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suffers from the same unconstitutional vagueness identified by the Supreme Court in the

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statutes at issue in Johnson and Dimaya. Under Watson, however, the Ninth Circuit Court

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of Appeals found that a bank robbery conviction qualifies as a “crime of violence”

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predicate offense.

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In Count Two, Petitioner was charged, convicted, and sentenced for use of a deadly

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weapon (destructive device) during a “crime of violence” in violation of 18 U.S.C.

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924(c)(1). A “Crime of Violence” under 18 U.S.C § 924(c)(1) is defined as a felony that

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has either: (A) an element the use, attempted use, or threatened use of physical force against

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the person or property of another, or (B) that by its nature, involves a substantial risk that

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physical force against the person or property of another may be used in the course of

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committing the offense. 18 U.S.C. § 924(c)(3). Subsection (A) is known as the “force

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clause” and is satisfied if the predicate crime has as an element the use of “‘violent’

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physical force—‘that is force capable of causing physical pain or injury.’” Watson, 881

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F.3d at 784 (quoting Johnson v. United States, 559 U.S. 133, 140 (2010) ). In Watson, the

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court held that a felony conviction for bank robbery under § 2113(a) constitutes a “crime

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of violence” under the “force clause,” § 924(c)(3)(A). Watson, 881 F.3d at 784.

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The defendants in Watson were convicted of robbing a bank under § 2113(a) while

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armed with handguns. The Court finds no distinction in the fact that, here, the Defendant

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was armed with a hand grenade. In Watson, the Ninth Circuit rejected the argument that

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after Johnson bank robbery no longer qualifies as a crime of violence. Following Watson,

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as it must, the Court finds bank robbery fits the definition of “crime of violence” in §

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924(c)(3), and the sentence imposed for Count Two is constitutional. The Court denies the

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§ 2255 motion.

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Habeas relief under 28 U.S.C. § 2255 is only available to a petitioner in custody in

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violation of the Constitution or laws of the United States. Under § 2255, “a district court

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must grant a hearing to determine the validity of a petition brought under that section,

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[u]nless the motions and the files and records of the case conclusively show that the

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prisoner is entitled to no relief.” United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir.

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1994). “The standard essentially is whether the movant has made specific factual

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allegations that, if true, state a claim on which relief could be granted.” United States v.

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Withers, 638 F.3d 1055, 1062 (9th Cir. 2011). A district court may dismiss a § 2255 motion

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based on a facial review of the record “only if the allegations in the motion, when viewed

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against the record, do not give rise to a claim for relief or are palpably incredible or patently

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frivolous.” Id. at 1062–63. Because the Court finds that the Petitioner’s Motion does not

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give rise to a claim for relief, it denies it without a hearing.

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Rule 11(a), Rules Governing Section 2255 Cases, requires that the “district court

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must issue or deny a certificate of appealability when it enters a final order adverse to the

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applicant.” The standard for issuing a certificate of appealability is whether the applicant

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has “made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

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2253(c)(2). “Where a district court has rejected the constitutional claims on the merits, the

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showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate

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that reasonable jurists would find the district court's assessment of the constitutional claims

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debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). To meet the “threshold

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inquiry” on debatability, the Ninth Circuit instructs that the petitioner “must demonstrate

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that the issues are debatable among jurists of reason; that a court could resolve the issues

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[in a different manner]; or that the questions are adequate to deserve encouragement to

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proceed further.” Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000) (internal

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citations omitted).

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Petitioner’s challenge to his conviction and sentence under § 924(c) runs directly

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contrary to controlling Ninth Circuit authority. The Watson decision is binding precedent

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on this Court, and as the Ninth Circuit noted, it reached the same conclusion as “every

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other circuit to address the same question.” Watson, 881 F.3d at 785. Given the certainty

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of dismissal of the Petition under Watson, the Court will not issue a certificate of

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appealability.

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Accordingly,

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IT IS ORDERED that the Motion to Vacate, Set Aside, or Correct Sentence

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Pursuant to 28 U.S.C. § 2255 (Document 167) filed in CR 01-1629 TUC DCB and

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(Document 1) filed in CV 16-806 TUC DCB is DENIED.

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IT IS FURTHER ORDERED that Civil case number CV 16-806 TUC-DCB is
DISMISSED with prejudice.
IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment
accordingly.

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IT IS FURTHER ORDERED that a certificate of appealability as to his claim that
federal bank robbery is not a crime of violence under 18 U.S.C. § 924(c) is DENIED.
Dated this 25th day of March, 2019.

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