Torres v. United States of America
Filing
18
ORDER dismissing 6 Motion to Vacate ; granting 11 motion to dismiss. The Clerk is directed to enter judgment for the United States and then to CLOSE the case. Signed by Judge Susan C Bucklew on 10/21/2016. (JD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MIGUEL ANTONIO TORRES
Petitioner,
v.
CASE NO. 8:16-cv-1508-T-24TGW
8:11-cr-309-T-24TGW
UNITED STATES OF AMERICA,
Respondent.
/
ORDER
Petitioner Miguel Antonio Torres filed a pro-se Motion to Vacate pursuant to 28
U.S.C. §2255 on June 7, 2016. Then Petitioner, represented by counsel, filed an Amended
Motion to Vacate pursuant to 28 U.S.C. § 2255 on June 24, 2016. The United States filed
a motion to dismiss the amended § 2255 motion as untimely, to which Petitioner filed a
response. With the Court’s permission, the United States filed a reply to Petitioner’s
response. Petitioner filed a notice of supplemental authority regarding the United States’
reply. After due consideration, the Court finds Petitioner’s motion should be dismissed as
untimely.
Petitioner pled guilty to two counts of aiding and abetting the brandishing of a
firearm during and in relation to a crime of violence in violation of 18 U.S.C. §
924(c)(1)(A) and 2 (count three and count five). The underlying offenses for the § 924(c)
counts were the armed robbery of a CVS pharmacy (count two) and carjacking (count
four). The Court sentenced Petitioner to a term of imprisonment of 384 months on
January 10, 2012. Petitioner filed a direct appeal. Petitioner’s sentence was affirmed on
October 4, 2012.
Petitioner now seeks relief under the auspices of § 2255. He claims that because
the Armed Career Criminal Act’s (“ACCA”) residual clause is unconstitutionally vague, a
similarly worded statute, 18 U.S.C. § 924(c)(1)(3)(B), is also unconstitutionally vague,
and his sentence should be set aside. Petitioner’s claim for relief rests on the decision in
Johnson v. United States, 135 S.Ct. 2551 (2015), in which the Supreme Court held that
the residual cause of the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague,
a decision that was made retroactive on collateral review by the Supreme Court in Welch
v. United States, 136 S.Ct. 1257 (2016). Petitioner seeks to extend the holdings in
Johnson and Welch to 18 U.S.C. § 924(c) on collateral review. However, Petitioner’s
motion is untimely in that his conviction has been final for more than one year, and he
cannot satisfy the exception to the one year statute of limitations under 28 U.S.C. §
2255(f)(3).
Johnson affords Petitioner no collateral relief with regard to his § 924(c)
conviction. First, Johnson did not address the statute under which Petitioner was
convicted. Instead, Johnson ruled on the constitutionality of the residual clause of the
ACCA, § 924(e)(2)(B)(ii). The Supreme Court has never held that any part of § 924(c) is
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unconstitutionally vague. Nor has the Eleventh Circuit Court of Appeals extended
Johnson’s vagueness determination to § 924(c).
In addition to being dismissed as untimely, Petitioner’s motion should also be
denied because Petitioner’s convictions under § 924(c)(1)(A) are valid regardless of
whether the residual clause of § 924(c)(3)(B) is unconstitutionally vague in light of
Johnson. Petitioner’s § 924(c)(1)(A) convictions in counts three and five are based on
armed robbery in violation of 18 U.S.C. §1951(a) charged in count two and armed
carjacking in violation of 18 U.S.C.§2119 charged in count four of the same indictment.
Robbery constitutes a crime of violence under the use, attempted use, or threatened use of
force clause of § 924(c)(3)(A), not the residual clause in §924(c)(3)(B). See In re Fleur,
824 F.3d 1337, 1341 (11th Cir. 2016) (“In sum, Saint Fleur pled guilty to using, carrying,
and discharging a firearm during the Hobbs Act robbery set forth in Count 4, which
robbery offense meets the use-of-force clause of the definition of a crime of violence
under § 924(c)(3)(A). This means Saint Fleur’s sentence would be valid even if Johnson
makes the § 924(c)(3)(B) residual clause unconstitutional.”).
The Court also finds the armed carjacking charged in count four qualifies as a
crime of violence under the § 924(c)(3)(A) use of force clause without regard to the §
924(c)(3)(B) residual clause. In the case of In re Hines, 824 F.3d 1334, 137 (11th Cir.
2016), the Eleventh Circuit found a conviction for armed bank robbery under 18 U.S.C. §
2113(a) meets the requirement for an underlying violent felony offense for purposes of §
924(c)(3)(A). The language of 18 U.S.C.§ 2113(a), armed bank robbery, which was
examined in In Re Hines, (taking “by force and violence or by intimidation”) is the same
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language used in the carjacking statute, 18 U.S.C. § 2119. (takes “by force and violence
or by intimidation”). Therefore, armed carjacking is a crime of violence, and Johnson
simply does not apply.
ACCORDINGLY, for the reasons expressed, it is ORDERED AND
ADJUDGED that:
(1)
The Government’s motion to dismiss Petitioner’s § 2255 motion as
untimely (CV-Doc. 11) is GRANTED.
(2)
Petitioner’s Amended Motion to Vacate (CV-Doc. 6; CR-Doc. 102) is
DISMISSED.
(3)
The Clerk is directed to enter judgment for the United States in the civil
case and then to CLOSE the civil case.
DONE AND ORDERED at Tampa, Florida, on October 21, 2016.
Copies to: Counsel of Record
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