Torres v. United States of America

Filing 24

ORDER denying 23 Motion for Certificate of Appealability. Signed by Judge Susan C Bucklew on 2/3/2017. (JD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

MICHAEL ANTONIO TORRES
Petitioner,
v.

CASE NO. 8:16-cv-1508-T-24TGW

UNITED STATES OF AMERICA,
Respondent.
/

ORDER
Petitioner Joshua Michael Wilkes, represented by counsel, filed an Application for
Certificate of Appealability. (Doc. 23). Upon consideration of Petitioner’s Motion to
Vacate pursuant to 28 U.S.C. § 2255 as well as Petitioner’s underlying criminal case,
Petitioner’s Application is denied because Petitioner has not made a showing of the denial
of a constitutional right under 28 U.S.C. § 2253(c)(2).
Petitioner seeks to extend the holding in Johnson v. United States,135 S. Ct. 2551
(2015), to 18 U.S.C. § 924(c) on collateral review. Johnson affords Petitioner no
collateral relief with regard to his § 924(c) conviction because Johnson did not address
the statute under which Petitioner was convicted. The Supreme Court has never held that
any part of § 924(c) is unconstitutionally vague. Nor has the Eleventh Circuit Court of
Appeals extended Johnson’s vagueness determination to § 924(c). However, even if

reasonable jurists could find it debatable under Slack v. McDaniel, 529 U.S. 473, 478
(2000), as to whether Johnson extends to the residual clause under 18 U.S.C. § 924(c),
Petitioner’s convictions for a Hobbs Act robbery and carjacking qualify as crimes of
violence under § 924(c)’s use-of force clause. See In re Fleur, 824 F.3d 1337, 1341 (11th
Cir. 2016) (holding Hobbs Act robbery offense met use-of-force clause of statutory
definition of crime of violence); In re Smith 829 F.3d 1276 (11th Cir. 2016)(concluding
that carjacking in violation of § 2119 satisfies § 924(c)’s force clause).
ACCORDINGLY, for the reasons expressed, Petitioner’s Application for
Certificate of Appealability is denied.
DONE AND ORDERED at Tampa, Florida, on February 3, 2017.

Copies to: Counsel of Record

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