Matsunaga v. USA
Filing
4
ORDER Denying Petitioner's Motion to Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody And Granting Certificate of Appealability."The court denies Matsunaga's § 2255 petition and grants a certificate of appealability." Signed by JUDGE SUSAN OKI MOLLWAY on 3/27/18. (cib, )No COS issued for this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
UNITED STATES OF AMERICA,
)
)
Plaintiff-Respondent, )
)
vs.
)
)
SEAN MATSUNAGA,
)
)
Defendant-Petitioner. )
_____________________________
Cr. No. 99-00473 SOM
Civ. No. 16-00679 SOM/RLP
ORDER DENYING PETITIONER’S
MOTION UNDER 28 U.S.C. § 2255
TO VACATE, SET ASIDE, OR
CORRECT SENTENCE BY A PERSON
IN FEDERAL CUSTODY AND
GRANTING A CERTIFICATE OF
APPEALABILITY
ORDER DENYING PETITIONER’S MOTION UNDER 28 U.S.C. § 2255
TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN
FEDERAL CUSTODY AND GRANTING A CERTIFICATE OF APPEALABILITY
I.
INTRODUCTION.
In 1999, Sean Matsunaga and three other men robbed a
bank in Oahu.
They stole more than $100,000, shot at the
police, and injured innocent bystanders.
A jury found Matsunaga
guilty of conspiracy, bank robbery, and two counts of carrying a
firearm in furtherance of that conspiracy.
After two
unsuccessful appeals and one unsuccessful § 2255 petition,
Matsunaga brings a second petition under 28 U.S.C. § 2255,
arguing that his bank robbery conviction is not a “crime of
violence” for purposes of his conviction on Count 3, which
charged Matsunaga with knowingly carrying a firearm during and
in relation to a crime of violence.
This court denies the
petition and grants a certificate of appealability.
II.
STANDARD OF REVIEW.
Under § 2255, a court may grant relief to a federal
prisoner who challenges the imposition or length of his or her
incarceration on four grounds: (1) that the sentence was imposed
in violation of the Constitution or laws of the United States;
(2) that the court was without jurisdiction to impose such
sentence; (3) that the sentence was in excess of the maximum
authorized by law; or (4) that the sentence is otherwise subject
to collateral attack.
28 U.S.C. § 2255(a).
A § 2255 petition cannot be based on a claim that has
already been disposed of by the underlying criminal judgment and
ensuing appeal.
As the Ninth Circuit stated in Olney v. United
States, 433 F.2d 161, 162 (9th Cir. 1970), “Having raised this
point unsuccessfully on direct appeal, appellant cannot now seek
to relitigate it as part of a petition under § 2255.”
Even when a § 2255 petitioner has not raised an
alleged error at trial or on direct appeal, the petitioner is
procedurally barred from raising an issue in a § 2255 petition
if it could have been raised earlier, unless the petitioner can
demonstrate both “cause” for the delay and “prejudice” resulting
from the alleged error.
As the Court said in United States v.
Frady, 456 U.S. 152, 167-68 (1982), “[T]o obtain collateral
relief based on trial errors to which no contemporaneous
objection was made, a convicted defendant must show both
2
(1) ‘cause’ excusing his double procedural default, and ‘actual
prejudice’ resulting from the errors of which he complains.”
Id.; accord Davis v. United States, 411 U.S. 233, 242 (1973).
A judge may dismiss a § 2255 petition if “it plainly
appears from the motion, any attached exhibits, and the record
of prior proceedings that the moving party is not entitled to
relief.”
Rule 4(b), Section 2255 Rules.
A court need not hold an evidentiary hearing if the
allegations are “palpably incredible or patently frivolous” or
if the issues can be conclusively decided on the basis of the
evidence in the record.
See Blackledge v. Allison, 431 U.S. 63,
76 (1977); see also United States v. Mejia-Mesa, 153 F.3d 925,
929 (9th Cir. 1998) (noting that a “district court has discretion
to deny an evidentiary hearing on a § 2255 claim where the files
and records conclusively show that the movant is not entitled to
relief”); United States v. Christie, 2018 WL 1073128, *3 (D.
Haw. Feb. 27, 2018) (“A court need not hold an evidentiary
hearing if the allegations are palpably incredible or patently
frivolous, or if the issues can be conclusively decided on the
basis of the evidence in the record.” (quotation marks,
citations, and alterations omitted)).
This court determines
that Matsunaga’s present § 2255 motion raises purely legal
issues.
No evidentiary hearing has been requested, and none is
necessary.
3
III.
BACKGROUND.
This is Matsunaga’s second § 2255 petition.
The court
set forth the background in its earlier order denying his first
§ 2255 petition:
On July 7, 1999, Matsunaga, Albert
Batalona, Jacob Hayme, and Roger Dailey
robbed the American Savings Bank located in
Kahala on Oahu. Wearing ski masks and armed
with weapons, 1 they entered the bank and
ordered everyone to lie on the floor.
Transcript of Proceedings (“Transcript”)
Volume 3 at 11-13, 167 (bank employee
describing events) (Sept. 26, 2002). Some
bank employees were pushed to the floor and
hit with a rifle. Id. at 13, 27. The men
took more than $100,000 from the teller cash
dispenser that contained bait bills and dye
packs. Id. at 88-91, 110. The dye packs
exploded when they were taken from the bank.
Id. at 20, 54.
Because a bank employee had pushed a
silent alarm that alerted the police that
there was a problem, police were waiting
outside the bank. Id. at 23. Batalona shot
at the police. Id. at 34, 96, 136-38.
Matsunaga, Hayme, and Dailey escaped
together, while Batalona, still armed and
wearing a face mask, stopped a bakery
delivery van and escaped in that van.
Shortly thereafter, the four men were
arrested. 2
1
Matsunaga and Hayme carried semiautomatic assault weapons,
while Batalona was armed with a machine gun. Transcript Volume
5 at 164-71 (Oct. 1, 2002).
2
Dailey was arrested, pled guilty to bank robbery, and was
sentenced to a 75-month term of imprisonment. See Judgment,
99-cr-442, Docket No. 44 (Aug. 1, 2003). Hayme and Batalona
were arrested, and Batalona was convicted in state court of
robbery, attempted murder, use of a firearm in the commission of
a separate felony, and possession of a prohibited firearm.
4
Subsequently, a Superseding Indictment
issued charging Matsunaga and Hayme with
five counts. Count 1 charged Matsunaga and
Hayme with conspiring with others to rob a
bank in violation of 18 U.S.C. § 2113(a).
Count 2 charged Matsunaga and Hayme with
bank robbery in violation of 18 U.S.C.
§ 2113(a). Counts 3 and 4 charged Matsunaga
and Hayme with knowingly carrying
semiautomatic assault weapons during the
robbery in violation of 18 U.S.C.
§§ 921(a)(30), 924(c)(1)(A), and 2.
Specifically, Count 3 charged Matsunaga and
Hayme with being responsible for the
carrying of a Norinco .223 semi-automatic
assault weapon (Hayme’s alleged weapon),
while Count 4 charged Matsunaga and Hayme
with being responsible for the carrying of a
AR-15 .223 semi-automatic assault weapon
(Matsunaga’s alleged weapon). Count 5
charged Matsunaga and Hayme with being
responsible for the carrying of a machine
gun (Batalona’s alleged weapon). Id.
Matsunaga was thus charged with carrying
three weapons during the bank robbery: two
firearms carried by his co-conspirators, and
his AR-15 semiautomatic weapon, which was
never recovered.
. . . .
On October 8, 2002, the jury found
Matsunaga guilty on Counts 1 through 4 of
the Superseding Indictment, but not guilty
on Count 5. This court ordered judgment of
acquittal as to Count 5.
Hayme pled guilty to Counts 1 to 3 in the Superseding
Indictment, and received a post-Ameline sentence of 60 months of
imprisonment on Count 1, 92 months of imprisonment on Count 2
(concurrent with the sentence on Count 1), and 120 months of
imprisonment on Count 3 (consecutive to the sentence on Count
2).
5
Amended Order Denying Motion to Vacate, Set Aside, or Correct a
Sentence by a Person in Federal Custody under 28 U.S.C. § 2255
at 2-7, ECF No. 323, PageID #s 727-30 (Aug. 26, 2010).
Matsunaga was ultimately sentenced to 60 months of
imprisonment on the conspiracy charge alleged in Count 1, 151
months of imprisonment on the bank robbery charge alleged in
Count 2 (running concurrently with Count 1), and 10 years of
imprisonment on the § 924(c) charge alleged in Count 3 (running
consecutively to the sentence on Count 2), for a total of 271
months imprisonment.
See Fourth Amended Judgment, ECF No. 274,
PageID # 133 (May 11, 2006).
Matsunaga appealed.
On July 2, 2008, the Ninth
Circuit Court of Appeals affirmed in a memorandum decision.
ECF No. 292.
See
Matsunaga did not seek certiorari from the United
States Supreme Court.
On October 8, 2009, Matsunaga filed his first petition
under § 2255.
See ECF No. 308.
That petition was denied in an
amended order of August 26, 2010.
See ECF No. 323.
On May 26, 2016, Matsunaga filed the present (his
second) petition under § 2255, after receiving permission from
the Ninth Circuit to do so.
IV.
See ECF Nos. 330-31.
ANALYSIS.
Matsunaga argues that his conviction under § 924(c)
should be vacated because it was premised on his bank robbery
6
conviction under § 2113(a), which, according to Matsunaga, did
not constitute a “crime of violence.”
In relevant part, Count 3 of the Superseding
Indictment of September 26, 2001, charged Matsunaga with
knowingly carrying a firearm during and in relation to a crime
of violence (the July 7, 1999, bank robbery charge alleged in
Count 2 of the Superseding Indictment) in violation of 18 U.S.C.
§ 924(c)(1)(A).
See ECF No. 107-2, PageID # 4.
The version of
18 U.S.C. § 924(c)(1)(A) in effect from November 13, 1998, to
November 1, 2002, is identical in relevant part to the current
version:
[A]ny person who, during and in relation to
any crime of violence . . . , uses or
carries a firearm, or who, in furtherance of
any such crime, possesses a firearm, shall,
in addition to the punishment provided for
such crime of violence . . .-. . . .
(iii) if the firearm is discharged, be
sentenced to a term of imprisonment of not
less than 10 years.
18 U.S.C. § 924(c)(1)(A).
That version of § 924(c) further
defined “crime of violence” as:
(3) . . . an offense that is a felony and-(A) has as an element the use, attempted
use, or threatened use of physical force
against the person or property of another,
or
7
(B) that by its nature, involves a
substantial risk that physical force against
the person or property of another may be
used in the course of committing the
offense.
Id.
The present order refers to § 924(c)(3)(A) as the
“force or elements clause,” and to § 924(c)(3)(B) as the
“residual clause.”
Count 2 of the Superseding Indictment charged
Matsunaga with federal bank robbery in violation of 18 U.S.C.
§ 2113(a).
The version of that statute in effect from October
11, 1996, to November 1, 2002, which is identical to in relevant
part the current version of the statute:
(a) Whoever, by force and violence, or by
intimidation, takes, or attempts to take,
from the person or presence of another, or
obtains or attempts to obtain by extortion
any property or money or any other thing of
value belonging to, or in the care, custody,
control, management, or possession of, any
bank, credit union, or any savings and loan
association . . .
. . . .
Shall be fined under this title or
imprisoned not more than twenty years, or
both.
The issue before this court is whether Matsunaga’s
§ 2113(a) conviction is a “crime of violence” such that a
predicate for his § 924(c)(1)(A) conviction exists.
Under
binding Ninth Circuit precedent, Matsunaga’s federal bank
8
robbery conviction pursuant to § 2113(a) is a “crime of
violence.”
But before addressing that precedent, this court
examines the Government’s procedural arguments.
A.
There Is No Statute of Limitation Bar.
Matsunaga’s sentence and conviction were affirmed by
the Ninth Circuit in 2008.
Matsunaga did not seek certiorari
from the United States Supreme Court.
On June 26, 2015, the Supreme Court decided Johnson v.
United States, 135 S. Ct. 2551, which held the residual clause
of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)
(“involv[ing] conduct that presents a serious potential risk of
physical injury to another”), unconstitutionally vague in
violation of the Due Process Clause.
2563.
Johnson, 135 S. Ct. at
Ten months later, on April 18, 2016, the Supreme Court
held that Johnson applied retroactively to ACCA cases on
collateral review.
Welch v. United States, 136 S. Ct. 1257,
1268 (2016).
About one month after Welch and less than one year
after Johnson, on May 26, 2016, Matsunaga filed with the Ninth
Circuit an Application for Leave to File Second or Successive
Petition Under 28 U.S.C. § 2255.
On January 25, 2017, the Ninth
Circuit granted that Application, ordering that the proposed
§ 2255 motion be transferred to this court and deemed filed as
of May 26, 2016.
See ECF No. 330.
9
Matsunaga was required to file his § 2255 motion
within one year from the latest of four dates: (1) when the
judgment of conviction becomes final; (2) when the impediment to
making a motion created by governmental action in violation of
the Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such governmental
action; (3) when the right asserted is initially recognized by
the Supreme Court, if that right has been newly recognized by
the Supreme Court and made retroactively applicable to cases on
collateral review; or (4) when the facts supporting the claim or
claims presented could have been discovered through the exercise
of due diligence.
28 U.S.C. § 2255(f).
Under the third prong, Matsunaga was required to file
his § 2255 petition within one year of the Welch decision of
April 10, 2016, which made Johnson retroactively applicable to
ACCA cases on collateral review.
Matsunaga argues that
Johnson/Welch should be extended beyond ACCA cases.
Because
Matsunaga’s § 2255 petition was filed on May 26, 2016, less than
one year after Johnson and about one month after Welch, it was
timely.
B.
Matsunaga Did Not Procedurally Default.
The Government argues that Matsunaga procedurally
defaulted on the claim he raises in this § 2255 petition, saying
that he did not previously raise the issue with this court or
10
with the Ninth Circuit on appeal.
This court is not persuaded
by the Government in this regard.
A defendant procedurally defaults on a claim not
raised to the trial court or on appeal “absent a showing of
cause for the noncompliance and some showing of actual prejudice
resulting from the alleged constitutional violation.”
Wainwright v. Sykes, 433 U.S. 72, 84 (1977); see also United
States v. Frady, 456 U.S. 152, 167 (1982).
To show “actual
prejudice,” a § 2255 petitioner “must shoulder the burden of
showing, not merely that the errors at his trial created a
possibility of prejudice, but that they worked to his actual and
substantial disadvantage, infecting his entire trial with error
of constitutional dimensions.”
Frady, 456 U.S. at 170.
Matsunaga argues that the Supreme Court’s decisions in
Johnson and Welch provide him with the necessary “cause,” as the
Supreme Court recognized a new constitutional right and made it
retroactively applicable on collateral review.
for an extension of Johnson/Welch.
Matsunaga argues
Such an argument establishes
the necessary “cause,” as the legal basis for the argument was
not reasonably available to Matsunaga until those cases were
decided.
Murray v. Carrier, 477 U.S. 478, 488 (1986) (“[A]
showing that the factual or legal basis for a claim was not
reasonably available to counsel . . . would constitute cause”).
11
If successful here, Matsunaga would have his § 924(c)
conviction vacated, resulting in the vacating of his consecutive
sentence for that conviction.
These facts demonstrate the
necessary prejudice to overcome the procedural default bar.
See
Wade v. United States, 242 F. Supp. 3d 974, 978 (C.D. Cal. 2017)
(“If the court mistakenly treated a Hobbs Act robbery as a crime
of violence, there is a reasonable probability that, but for the
error, Wade's sentence would have been different. The Court thus
finds that Wade has established prejudice.”).
Under these
circumstances, it makes no sense to treat Matsunaga as having
procedurally defaulted his claim.
Notably, the Ninth Circuit
clearly allowed Matsunaga’s § 2255 petition to proceed, even
though it was filed years after Matsunaga’s sentence was imposed
and long after his appeals were decided.
C.
Matsunaga Was Convicted of a Crime of Violence.
Matsunaga challenges his § 924(c) conviction,
asserting that his federal bank robbery conviction in violation
of 18 U.S.C. § 2113(a) can no longer be deemed a qualifying
“crime of violence” in light of Johnson/Welch.
Matsunaga argues
that the residual clause in § 924(c)(3)(B) is similar to the one
struck down in Johnson and is therefore unconstitutionally
vague.
The Government, on the other hand, argues that Matsunaga
is not entitled to § 2255 relief because his conviction for
federal bank robbery is categorically a crime of violence under
12
the “force or elements” clause of § 924(c)(3)(A).
Because the
court concludes that Matsunaga’s federal bank robbery conviction
is a crime of violence under the “force or elements” clause,
this court need not reach Matsunaga’s contention that it is not
a crime of violence under the “residual clause.”
To determine whether an offense is a “crime of
violence,” courts utilize the “categorical approach” set forth
in Taylor v. United States, 495 U.S. 575 (1990); see also
Johnson, 135 S. Ct. at 2557.
This requires courts to determine
“whether a crime qualifies as a violent felony in terms of how
the law defines the offense and not in terms of how an
individual offender might have committed it on a particular
occasion.”
Johnson, 135 S. Ct. at 2557 (quotation marks and
citation omitted).
To determine whether an offense is
categorically a crime of violence, courts compare the elements
of a particular statutory conviction with its generic federal
counterpart.
United States v. Sahagun-Gallegos, 782 F.3d 1094,
1098 (9th Cir. 2015); accord United States v. Watson, 881 F.3d
782, 784 (9th Cir. 2018) (under the categorical approach, “the
sole focus is on the elements of the relevant statutory offense,
not on the facts underlying the convictions.”).
Because the
categorical approach is concerned only with what conduct the
offense necessarily involves, the court “must presume that the
[offense] rested upon nothing more than the least of the acts
13
criminalized, and then determine whether even those acts are
encompassed by the generic federal offense.”
Moncrieffe v.
Holder, 133 S. Ct. 1678, 1684 (2013) (quotation marks, citation,
and alterations omitted); Watson, 881 F.3d at 784 (“An offense
is categorically a crime of violence only if the least violent
form of the offense qualifies as a crime of violence.”).
In United States v. Selfa, 918 F.2d 749 (9th Cir.
1990), the Ninth Circuit defined “intimidation” for purposes of
§ 2113(a) as “‘wilfully to take, or attempt to take, in such a
way that would put an ordinary, reasonable person in fear of
bodily harm.’”
Id. at 751 (quoting United States v. Hopkins,
703 F.2d 1102, 1103 (9th Cir. 1983)).
Selfa further held “that
persons convicted of robbing a bank ‘by force and violence’ or
‘intimidation’ under 18 U.S.C. § 2113(a) have been convicted of
a ‘crime of violence’ within the meaning of Guideline Section
4B1.1.”
Id.
Similarly, in United States v. Wright, 215 F.3d 1020,
1028 (9th Cir. 2000), the Ninth Circuit held that armed bank
robbery in violation of §§ 2113(a) and 2113(d) constitutes a
crime of violence within the meaning of 18 U.S.C. § 924(c).
Even after Johnson/Welch, the Ninth Circuit has
continued to hold that bank robbery convictions under § 2113(a)
involve crimes of violence for purposes of § 924.
For example,
in United States v. Gutierrez, 876 F.3d 1254, 1257 (9th Cir.
14
2017) (per curiam), the Ninth Circuit reaffirmed Selfa’s holding
in a published decision:
We agree with the analysis of our sister
circuits. We, too, have held that
“intimidation” as used in the federal bank
robbery statute requires that a person take
property “in such a way that would put an
ordinary, reasonable person in fear of
bodily harm,” which necessarily entails the
“threatened use of physical force.” As a
result, in our court, too, federal bank
robbery constitutes a crime of violence.
Id. We have not addressed in a published
decision whether Selfa’s holding remains
sound after Johnson, but we think it does.
A defendant cannot put a reasonable person
in fear of bodily harm without threatening
to use “force capable of causing physical
pain or injury.” Bank robbery by
intimidation thus requires at least an
implicit threat to use the type of violent
physical force necessary to meet the Johnson
standard.
Id. (quoting Johnson, 559 U.S. at 140 and Selfa, 918 F.2d at
751) (internal citations omitted). 3
On February 1, 2018, the Ninth Circuit similarly ruled
in Watson, 881 F.3d 782, a case involving similar facts and the
3
In Gutierrez, the Ninth Circuit entered judgment on December
12, 2017, and the mandate issued on February 5, 2018. See Case:
16-35583, ID: 10750773, DktEntry: 28. On March 6, 2018,
Gutierrez filed a petition for certiorari on the issue of
whether carjacking, in violation of 18 U.S.C. § 2119,
constitutes a crime of violence under 18 U.S.C. § 924(c). See
id. at DktEntry: 29.
15
same attorney representing Matsunaga here. 4
The defendants in
Watson robbed an American Savings Bank while armed with
handguns.
The defendants were charged with bank robbery in
violation of 18 U.S.C. §§ 2113(a) and 2113(d), as well as with
using or carrying a firearm during a crime of violence in
violation of 18 U.S.C. § 924(c)(1)(A), the same statutes at
issue here.
In a § 2255 petition, the defendants made the same
argument raised here–-that a conviction for using or carrying a
firearm during a crime of violence is unlawful because the
predicate bank robbery offense no longer qualifies as a crime of
violence.
Watson, 881 F.3d at 784.
The Ninth Circuit rejected
that argument.
Watson began by noting that, to qualify as a crime of
violence under the “force or elements” clause, the “physical
force” element must involve “violent” physical force or “force
capable of causing physical pain or injury.”
Id.
The Ninth
Circuit used the categorical approach to determine whether bank
robbery in violation of § 2113(a) qualifies as a crime of
violence, noting that an “offense is categorically a crime of
violence only if the least violent form of the offense qualifies
as a crime of violence.”
Id.
Watson noted that § 2113(a)
prohibits bank robberies “by force or violence” or by
4
On March 5, 2018, Watson filed a petition for rehearing en
banc. See Case: 16-15357, ID: 10785415, DktEntry: 44-1. That
petition for rehearing en banc has not been adjudicated.
16
“intimidation.”
The defendants in Watson did not dispute that
committing a bank robbery “by force or violence” necessarily
entails the requisite violent physical force for purposes of
§ 924(c)(1)(A), instead arguing that bank robbery by
“intimidation” was not a crime of violence.
Id. at 785.
In the
Opening Brief on appeal, the defendants argued, “because federal
strong-arm bank robbery can be politely and peaceably committed,
involving nothing more than a soft spoken request for money
while visibly armed, it is not a force clause crime of
violence.”
Joint Opening Brief at 9, Case: 16-15357, DktEntry:
6, ID: 10119747 (Sept. 12, 2016); and at 14-16 (arguing that,
based on United States v. Hopkins, 703 F.2d 1102 (9th Cir. 1983),
the minimal conduct necessary to prove a violation of § 2113(a)
in the Ninth Circuit is a polite demand for money where the
defendant speaks calmly, making no threats, while unarmed).
The Ninth Circuit was unpersuaded:
In Gutierrez, we held that “intimidation”
as used in § 2113(a) requires that the
defendant take property “in such a way that
would put an ordinary, reasonable person in
fear of bodily harm” and that a “defendant
cannot put a reasonable person in fear of
bodily harm without threatening to use force
capable of causing physical pain or injury.”
We concluded that bank robbery qualifies as
a crime of violence because even its least
violent form “requires at least an implicit
threat to use the type of violent physical
force necessary to meet the Johnson
standard.” In so holding, we joined every
other circuit to address the same question.
17
Id. (quoting 876 F.3d at 1257). 5
The Ninth Circuit has also followed Selfa’s holding in
a number of unpublished post-Johnson/Welch memorandum opinions.
See, e.g., United States v. Kenney, 2018 WL 797092, at *2 (9th
Cir. Feb. 9, 2018) (“Kenney’s 18 U.S.C. § 924(c) conviction need
not be vacated because the underlying crime of armed bank
robbery pursuant to 18 U.S.C. § 2113(a) and (d) remains a crime
of violence under United States v. Selfa, 918 F.2d 749, 751 (9th
Cir. 1990).”); United States v. Pruett, 2017 WL 5897307, at *1
(9th Cir. Nov. 30, 2017) (federal bank robbery conviction under
§ 2113(a) is a crime of violence for purposes of § 924(c));
United States v. Pritchard, 692 F. App'x 349, 351 (9th Cir. May
18, 2017) (“[B]ank robbery in violation of § 2113(a) qualifies
as a crime of violence”), cert. denied sub nom. Johnson v.
United States, 138 S. Ct. 412 (2017); United States v. Cross,
691 F. App’x 312 (9th Cir. May 15, 2017) (“[A]rmed bank robbery
in violation of § 2113(a) & (d) constitutes a crime of violence
within the meaning of 18 U.S.C. § 924(c).
No intervening
authority has overruled these precedents.”), cert. denied, 138
S. Ct. 408 (2017); United States v. Jordan, 680 F. App'x 634,
635 (9th Cir. Mar. 14, 2017) (“Under our current case law,
5
The Ninth Circuit also rejected the argument that bank robbery
by intimidation does not meet the mens rea requirement for a
crime of violence. Watson, 881 F.3d at 785.
18
§ 2113(a) bank robbery categorically qualifies as a ‘crime of
violence’ under § 924(c)(3)(A).”), cert. denied, 138 S. Ct. 160
(2017)).
Despite the breadth of binding case law on this court,
Matsunaga argues that the minimum conduct necessary for a
§ 2113(a) conviction does not involve a “crime of violence.”
Matsunaga argues that, under Hopkins, the minimum conduct for a
§ 2113(a) conviction “consists of nothing more than calmly and
apologetically demanding money.”
# 915.
Watson.
ECF No. 340 at 4, PageID
This exact argument was rejected by the Ninth Circuit in
It is therefore unpersuasive.
This court follows the
binding circuit precedent in concluding that a bank robbery
conviction under § 2113(a) is a crime of violence for purposes
of § 924(c).
D.
The Court Issues a Certificate of Appealability.
“The standard for granting a certificate of
appealability is low. All that’s required is that ‘reasonable
jurists could debate’ whether the petition states a ‘valid claim
of the denial of a constitutional right’ and whether the
district court ‘was correct in its procedural ruling.’”
Frost
v. Gilbert, 835 F.3d 883, 888 (9th Cir. 2016) (en banc) (quoting
Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Given the “low”
standard and the pending petitions in Watson and Gutierrez, this
court issues Matsunaga a certificate of appealability as to the
19
issue of whether his 18 U.S.C. § 924(c) conviction is premised
on a bank robbery conviction that qualifies as a “crime of
violence.”
V.
CONCLUSION.
The court denies Matsunaga’s § 2255 petition without
an evidentiary hearing and grants a certificate of
appealability.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 27, 2018.
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
United States v. Matsunaga, Crim. No. 99-00473; 16-00679
SOM/RLP; ORDER DENYING PETITIONER’S MOTION UNDER 28 U.S.C.
§ 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN
FEDERAL CUSTODY AND GRANTING A CERTIFICATE OF APPEALABILITY.
20
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