Wilkes v. United States of America

Filing 14

ORDER granting 7 motion to dismiss; dismissing 1 Motion to vacate/set aside/correct sentence (2255). 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

JOSHUA MICHAEL WILKES
Petitioner,
v.

CASE NO. 8:16-cv-1729-T-24TGW
8:11-cr-309-T-24TGW

UNITED STATES OF AMERICA,
Respondent.
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ORDER
Petitioner Joshua Michael Wilkes, represented by counsel, filed a Motion to
Vacate pursuant to 28 U.S.C. § 2255 on June 24, 2016. The United States filed a motion
to dismiss the § 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 armed robbery in violation of 18 U.S.C. § 1951(a) (count
two), and 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 535 months on January 4, 2012. Petitioner did
not file a direct appeal.
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)(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
unconstitutionally vague. Nor has the Eleventh Circuit Court of Appeals extended
Johnson’s vagueness determination to § 924(c).

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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, 1337 (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
language used in the carjacking statute, 18 U.S.C. § 2119. (takes “by force and violence

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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. 7) s GRANTED.

(2)

Petitioner’s Motion to Vacate (CV-Doc. 1; CR-Doc. 100) 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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