Kurkowski v. USA

Filing 19

MEMORANDUM DECISION AND ORDER. IT IS HEREBY ORDERED, that, Petitioners Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255. (Civ. Dkt. 1 )is DENIED. The Court shall issue a separate judgment as required by Rule 58(a). Petitioner is denied a certificate of appealability as to his claim that federal bank robbery is not a crime of violence under 18 U.S.C. § 924(c). Signed by Judge B. Lynn Winmill. (km)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
UNITED STATES OF AMERICA,
Case Nos. 4:04-cr-00086-BLW
4:16-cv-00276-BLW

Respondent,
v.
JOHN BENJAMIN KURKOWSKI,

MEMORANDUM DECISION
AND ORDER

Movant.

INTRODUCTION
Pending before the Court is Petitioner's Motion to Vacate, Set Aside, or Correct
Sentence pursuant to 28 U.S.C. § 2255. Civ. Dkt. 1, Crim. Dkt. 32. The motion is fully
briefed. Having reviewed the filings in this matter, the Court will deny Petitioner's
Motion without a hearing.
BACKGROUND
On September 29, 2004 Petitioner Kurkowski pled guilty to one count of bank
robbery in violation of 18 U.S.C. § 2113(a) (Count One) and one count of brandishing a
firearm during a “crime of violence” in violation of 18 U.S.C. § 924(c)(1) (Count Two).
Crim. Dkts. 22, 23. Mr. Kurkowski’s conviction for Count One constituted the “crime of
violence” that served as the basis for his conviction and sentence to Count Two. See
Crim. Dkt. 18 at 4. At sentencing, the Court calculated the Defendant’s total combined
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offense level of 23 with a Criminal History Category of IV. Crim. Dkt. 25 at 1. As such,
Count One carried a guideline range of 70 to 87 months imprisonment, with a statutory
maximum of 240 months. Id. Count Two carried a mandatory minimum sentence of 84
months to run consecutive to any other sentence imposed. Id; see also 18 U.S.C.
§ 924(c)(1)(A)(ii). On January 4, 2005, the Court sentenced Mr. Kurkowski to a total of
171 months’ imprisonment: 87 months for Count One, and 84 months for Count Two, to
be served consecutively. Crim. Dkts. 25, 26. Until now, Petitioner Kurkowski had neither
appealed nor collaterally attacked his conviction or sentence. Crim. Dkt. 11 at 11.
Petitioner now challenges the constitutionality of his sentence based on the
Supreme Court’s decisions in Johnson v. United States, 135 S. Ct. 2551 (2015) and
Sessions v. Dimaya, 138 S. Ct. 1208 (2018). In Johnson, the Supreme Court invalidated a
prisoner’s sentence under the Armed Career Criminal Act because the definition of
“violent felony” as a predicate crime that “otherwise involves conduct that presents a
serious potential risk of physical injury to another” was unconstitutionally vague. 135 S.
Ct. at 2557; 18 U.S.C. § 924(e)(2)(b)(ii). The Court in Dimaya invalidated a similarlyworded definition of “crime of violence” in the Immigration and Nationality Act (“INA”)
because it likewise “devolv[ed] into guesswork and intuition, invited arbitrary
enforcement, and failed to provide fair notice.” Dimaya, 138 S. Ct. at 1223; 18 U.S.C. §
16(b). Petitioner believes his sentence for Count Two—brandishing a firearm during a
“crime of violence”—should be vacated because the definition of the predicate “crime of
violence” in § 924(c) is unconstitutional following Johnson and Dimaya. See Civ. Dkt. 1;
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18 U.S.C. § 924(c)(3)(B). For the reasons that follow the Court will deny Petitioner’s
motion.
LEGAL STANDARD
To state a cognizable claim under 28 U.S.C. § 2255, a petitioner must assert that
he or she is in custody in violation of the Constitution or laws of the United States, that
the district court lacked jurisdiction, that the sentence exceeded the maximum allowed by
law, or that the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a).
Under § 2255, “a district court must grant a hearing to determine the validity of a petition
brought under that section, [u]nless the motions and the files and records of the case
conclusively show that the prisoner is entitled to no relief.” United States v. Blaylock, 20
F.3d 1458, 1465 (9th Cir. 1994). In determining whether a § 2255 motion requires a
hearing, “[t]he standard essentially is whether the movant has made specific factual
allegations that, if true, state a claim on which relief could be granted.” United States v.
Withers, 638 F.3d 1055, 1062 (9th Cir. 2011). A district court may dismiss a § 2255
motion based on a facial review of the record “only if the allegations in the motion, when
viewed against the record, do not give rise to a claim for relief or are palpably incredible
or patently frivolous.” Id. at 1062–63.
ANALYSIS
Petitioner Kurkowski argues the Court should vacate his sentence for Count Two
because bank robbery should no longer be considered a predicate “crime of violence” for
purposes of § 924(c)(3). That is so, Petitioner believes, because § 924(c)(3)(B) suffers
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from the same unconstitutional vagueness identified by the Supreme Court in the statutes
at issue in Johnson and Dimaya. Civ. Dkt. 14 at 7. The Government responds that
Petitioner's § 2255 claim is both procedurally defective and without merit. See Civ. Dkt.
11. The Court finds it unnecessary to address the Government’s procedural arguments or
to reach the question of whether § 924(c)(3)(B) is unconstitutionally vague. Under
controlling Ninth Circuit precedent, Petitioner's bank robbery conviction constitutes a
“crime of violence” predicate offense for purposes of Count Two. See United States v.
Watson, 881 F.3d 782 (9th Cir.)(per curiam), cert. denied, 139 S.Ct. 203, (2018).
Therefore, the Court will deny Petitioner’s motion.
1. Bank Robbery is a “Crime of Violence” Under 18 U.S.C § 924(c)(1)(A)
Count Two of Petitioner’s indictment, charges him with brandishing a firearm
during a “crime of violence” in violation of 18 U.S.C. § 924(c)(1). In turn, § 924(c)(1)
defines a “crime of violence” as a felony that either:
(A) has as an element the use, attempted use, or threatened use of physical
force against the person or property of another, or
(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.
18 U.S.C. § 924(c)(3). Section (A) is known as the “force clause” and is satisfied if the
predicate crime has as an element the use of “‘violent’ physical force—‘that is force
capable of causing physical pain or injury.’” Watson, 881 F.3d at 784 (quoting Johnson v.
United States, 559 U.S. 133, 140 (2010)). The Ninth Circuit, in Watson, held that a
conviction for bank robbery under § 2113(a) constitutes a “crime of violence” under the
Memorandum Decision and Order - 4

“force clause,” § 924(c)(3)(A). 881 F.3d at 784. The Defendants in Watson were
convicted of robbing a bank while armed with handguns under § 2113(a), just like
Petitioner here. See Id.; Crim. Dkt. 18 at 4-5. In Watson, the Ninth Circuit heard and
rejected the very same arguments Petitioner Kurkowski now raises in his § 2255 motion,
that “bank robbery no longer qualifies as a crime of violence.” Id; Crim. Dkt. 18 at 4-5.
Because the Ninth Circuit has addressed Petitioner Kurkowski’s arguments and held bank
robbery fits the definition of “crime of violence” in § 924(c)(3)(A), the Court finds his
sentence for Count Two is constitutional and denies Petitioner’s § 2255 motion.
2. Certificate of Appealability
Rule 11(a), Rules Governing Section 2255 Cases, requires that in such cases the
“district court must issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.” The standard for issuing a certificate of appealability is whether
the applicant has “made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). “Where a district court has rejected the constitutional claims on the
merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
To meet the “threshold inquiry” on debatability, the Ninth Circuit instructs that the
petitioner “must demonstrate that the issues are debatable among jurists of reason; that a
court could resolve the issues [in a different manner]; or that the questions are adequate
to deserve encouragement to proceed further.” Lambright v. Stewart, 220 F.3d 1022,
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1025 (9th Cir. 2000)(internal citations omitted). Even if a question is well settled in our
circuit, a constitutional claim is debatable if another circuit has issued a conflicting
ruling. See id. at 1025–26.
Petitioner has not demonstrated the denial of a constitutional right or that
reasonable jurists would find Petitioner’s claims debatable. Defendant's challenge to his
conviction and sentence under § 924(c) runs directly contrary to controlling Ninth Circuit
authority. See Watson 881 F.3d at 786. The Watson decision is binding precedent on this
Court, and as the Ninth Circuit noted, it reached the same conclusion as “every other
circuit to address the same question.” Id. at 785. Therefore, the Court will not grant
Petitioner a certificate of appealability.
ORDER
In accordance with the Memorandum Decision set forth above, NOW
THEREFORE IT IS HEREBY ORDERED, that,
1. Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28
U.S.C. § 2255. (Civ. Dkt. 1), (Crim. Dkt. 32) is DENIED. The Court shall issue a
separate judgment as required by Rule 58(a).
2. Petitioner is denied a certificate of appealability as to his claim that federal bank
robbery is not a crime of violence under 18 U.S.C. § 924(c).

Memorandum Decision and Order - 6

DATED: January 9, 2019
_________________________
B. Lynn Winmill
U.S. District Court Judge

Memorandum Decision and Order - 7