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)

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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 -2-

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