Adams v. USA
Filing
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OPINION, MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the Motion to Vacate, Set aside or Correct Sentence, [Doc. Nos. 1], is DENIED. IT IS FURTHER ORDERED that this Court will not issue a Certificate of Appealability as Movant has not made a substantial showing of the denial of a federal constitutional right. A separate judgment is entered this same date. Signed by District Judge Henry Edward Autrey on April 6, 2020. (MCB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
FRANK ADAMS,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.
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No. 4:16CV01011 HEA
OPINION, MEMORANDUM AND ORDER
Movant seeks relief from his conviction for brandishing a firearm in
furtherance of a crime of violence pursuant to 18 U.S.C. § 924(c), alleging his
conviction for Bank Robbery no longer qualifies as a crime of violence because 18
U.S.C. § 924(c)(3)(B)—the so-called residual clause—is unconstitutionally vague.
Movant applied for a stay of this proceeding pending the Supreme Court’s decision
in United States v. Davis, 139 S. Ct. 2319 (2019). The Court granted the stay. On
June 24, 2019, the Supreme Court issued its decision in Davis. Thereafter, the
Court ordered the parties to file status reports.
In Davis the Supreme Court held that the “residual” clause of § 924(c) was
unconstitutionally vague. The Court described the statutory definitions:
The statute proceeds to define the term “crime of violence” in two
subparts—the first known as the elements clause, and the second the residual
clause. According to § 924(c)(3), a crime of violence is “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
“(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.”
139 S.Ct. at 2324. Following the earlier cases, the Court went on to hold the
residual clause unconstitutionally vague, but that holding did not affect the
“elements” clause, which is also referred to as the “force” clause.
Subsequent to Davis, the Eighth Circuit Court of Appeals has found the use
of force is an element of bank robbery.
Davis does not apply to [Movant’s] conviction. See Estell v. United States,
924 F.3d 1291, 1293 (8th Cir. 2019) (bank robbery qualifies as a crime of
violence under 18 U.S.C. § 924(c)(3)(A)); see also Kidd v. United States,
929 F.3d 578, 581 (8th Cir. 2019) (per curiam) (armed robbery categorically
qualifies as crime of violence under use-of-force clause of § 924(c)(3)(A);
Davis does not apply where predicate offense qualifies under use-of-force
clause).
United States v. Gathercole, 795 F. App'x 985 (8th Cir. 2020).
Movant was convicted of bank robberies pursuant to 18 U.S.C. § 2113(a)
and (d), which fall under the force clause in § 924(c)(3)(A). Thus, bank robbery is
covered by the elements/force clause and has not been affected by the cases
involving the residual clause definition. Bank robbery is a crime of violence under
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the statutory definitions. See Estell, 924 F.3d at 1291. Therefore, his conviction
pursuant to § 924(c) is valid and he is not entitled to habeas relief.
CERTIFICATE OF APPEALABILITY
The federal statute governing certificates of appealability provides that
“[a] certificate of appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
A substantial showing of the denial of a constitutional right requires that “issues
are debatable among reasonable jurists, a court could resolve the issues differently,
or the issues deserve further proceedings.” Cox v. Norris, 133 F.3d 565, 569 (8th
Cir. 1997). Based on the record, and the law as discussed herein, the Court finds
that Movant has not made a substantial showing of the denial of a constitutional
right.
Accordingly,
IT IS HEREBY ORDERED that the Motion to Vacate, Set aside or
Correct Sentence, [Doc. Nos. 1], is DENIED.
IT IS FURTHER ORDERED that this Court will not issue a Certificate of
Appealability as Movant has not made a substantial showing of the denial of a
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federal constitutional right.
A separate judgment is entered this same date.
Dated this 6th day of April, 2020.
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HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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