Peterson v. USA

Filing 1

ORDER that Petitioner's Motions to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 are DENIED and a Certificate of Appealability is DENIED. Signed by Judge Gloria M. Navarro on 9/28/2019. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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UNITED STATES OF AMERICA,
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Respondent/Plaintiff,

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vs.

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AUSTIN JOSHUA PETERSON,
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Petitioner/Defendant.

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Case No.: 2:10-cr-00234-GMN-RJJ-1
ORDER

Pending before the Court is Petitioner Austin Joshua Peterson’s (“Petitioner”) Motion to

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Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (“2255 Motion”), (ECF

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Nos. 38, 39). The Government filed a Response, (ECF No. 41), and Petitioner filed a Reply,

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(ECF No. 42).
Also pending before the Court is Petitioner’s Motion to Stay, (ECF No. 48). The

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Government filed a Response, (ECF No. 49), and Petitioner filed a Reply, (ECF No. 50). For

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the reasons discussed below, the Court DENIES Petitioner’s 2255 Motion, and DENIES

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Petitioner’s Motion to Stay.

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I.

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BACKGROUND
On September 27, 2010, Petitioner pleaded guilty to Count One and Count Eight, Armed

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Bank Robbery, in violation of 18 U.S.C. § 2113(a) and (d); Counts Three through Seven,

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Interference with Commerce by Robbery (“Hobbs Act Robbery”), in violation of 18 U.S.C.

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§ 1951; Count Nine, Brandishing a Firearm During and in Relation to a Crime of Violence, in

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violation of 18 U.S.C. §§ 924(c)(1)(C) and 924(c)(1)(A)(ii); and Counts Ten and Eleven,

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Possession of a Stolen Firearm, in violation of 18 U.S.C. §§ 922(j) and 924(a)(2), of the

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Superseding Indictment, (ECF No. 15). (See Mins. of Proceedings, ECF No. 23). The Court

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sentenced Petitioner to 93 months’ custody for Counts One, Three, Four, Five, Six, Seven,

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Eight, and Ten, to be served concurrently; and 84 months’ custody for Count Nine, to run

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consecutively to the sentences imposed for all other counts, for a total of 177 months. (J., ECF

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No. 31).
On June 20, 2016, Petitioner filed an Abridged 2255 Motion, (ECF No. 38), followed by

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a comprehensive 2255 Motion, (ECF No. 39), on December 7, 2016, arguing that his sentence

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violates due process because it is based on an unconstitutionally vague portion of 18 U.S.C.

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§ 924(c). (See 2255 Mot. 6:13–10:22, ECF No. 39). Petitioner’s vagueness argument relies on

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Johnson v. United States, 135 S. Ct. 2551 (2015). In Johnson, the U.S. Supreme Court ruled

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that the residual clause of the Armed Career Criminal Act (ACCA) is unconstitutionally vague.

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Johnson, 135 S. Ct. at 2557. Petitioner accordingly points to language in § 924(c)’s residual

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clause, which is identical to that of the ACCA’s residual clause, for the proposition that both

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provisions, and any convictions and sentences arising therefrom, are invalid. (2255 Mot. 6:13–

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7:14).
After the ruling in Johnson, the Ninth Circuit issued its decision in United States v.

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Blackstone, 903 F.3d 1020, 1028–29 (9th Cir. 2018), cert. denied, 139 S. Ct. 2762 (2019). As

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pertinent to this case, the Ninth Circuit held that Johnson had not been extended to sentences

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imposed pursuant to § 924(c). Id. at 1028. Consequently, a 2255 motion seeking to invalidate a

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§ 924 conviction based on Johnson, would therefore be untimely. Id. at 1028, 1029 (“The

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Supreme Court may hold in the future that Johnson extends to sentences imposed . . . pursuant

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to [§ 924(c)], but until then [the petitioner’s] motion is untimely.”). Roughly three weeks later,

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Petitioner filed a Motion to Stay, (ECF No. 48), his case “until the mandate in Blackstone

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issues or until the [Supreme Court] resolves certiorari of Blackstone, whichever is later.” (Mot.

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Stay 2:13–15, ECF No. 48). This Order now follows.

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///

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II.

LEGAL STANDARD
Under 28 U.S.C. § 2255, a petitioner may file a motion requesting the Court which

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imposed sentence to vacate, set aside, or correct the sentence. 28 U.S.C. § 2255(a). Such a

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motion may be brought on the following grounds: “(1) the sentence was imposed in violation of

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the Constitution or laws of the United States; (2) the court was without jurisdiction to impose

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the sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the

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sentence is otherwise subject to collateral attack.” Id.; see United States v. Berry, 624 F.3d

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1031, 1038 (9th Cir. 2010). When a petitioner seeks relief pursuant to a right newly recognized

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by a decision of the United States Supreme Court, a one-year statute of limitations applies. 28

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U.S.C. § 2255(f)(3). That one-year limitation begins to run from “the date on which the right

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asserted was initially recognized by the Supreme Court.” Id. § 2255(f)(3).

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III.

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DISCUSSION
Petitioner argues that his sentence for Count Nine of the Superseding Indictment for

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Using and Carrying a Firearm arose under an unconstitutionally vague provision of 18 U.S.C.

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§ 924(c). (2255 Motion at 3:2–7, ECF No. 39). Title 18 United States Code Section 924(c)

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criminalizes the use or carrying of a firearm in relation to a “crime of violence,” and it imposes

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mandatory minimum sentences that must run consecutive to any other sentence. An offense

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may qualify as a crime of violence under § 924(c) through either of two clauses: § 924(c)(3)(A)

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or § 924(c)(3)(B). Section 924(c)(3)(A), also known as the statute’s “force clause,” applies if

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an individual is convicted of a predicate crime that “has as an element the use, attempted use, or

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threatened use of physical force against the person or property of another.” By contrast,

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§ 924(c)(3)(B), known as the “residual clause” of the statute, is much broader; it applies if the

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individual is convicted of any predicate felony offense “that by its nature, involves a substantial

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risk that physical force against the person or property of another may be used in the course of

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committing the offense.” The U.S. Supreme Court recently invalidated § 924(c)(3)(B) after

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holding that its language is unconstitutionally vague. See United States v. Davis, 139 S. Ct.

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2319, 2335–36 (2019). However, the force clause, § 924(c)(3)(A), has not been deemed

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unconstitutional.

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Here, Petitioner argues that his sentence based on Count Nine of the Indictment violates

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due process because the Court imposed it under the unconstitutionally vague residual clause, 18

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U.S.C. § 924(c)(3)(B). (See 2255 Motion 7:15–8:8). To make that argument, Petitioner points

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to his predicate offense of Armed Bank Robbery in violation of 18 U.S.C. § 2113. (Id. 13:1–

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19:18). He claims that Armed Bank Robbery is not a crime of violence by its elements, and

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thus his sentence enhancement for that predicate crime under Section 924(c) must have arisen

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from the unconstitutional residual clause. (See id. 19:14–18). The Ninth Circuit in United

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States v. Watson, 881 F.3d 782 (9th Cir.), cert. denied, 139 S. Ct. 203 (2018), rejected the same

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arguments made by Petitioner when it held that federal armed bank robbery constitutes a crime

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of violence by its elements. 881 F.3d at 786. Petitioner’s conviction for Armed Bank Robbery

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therefore implicates the force clause, 18 U.S.C. § 924(c)(3)(A), not the unconstitutional

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residual clause—rendering Petitioner ineligible for relief on the grounds argued in his 2255

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Motion. Accordingly, the Court will DENY Petitioner’s 2255 Motion, (ECF Nos. 38, 39).

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Additionally, the Court will not issue a certificate of appealability, which is required for

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Petitioner to proceed with an appeal of this Order. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22;

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9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950–51 (9th Cir. 2006); see also United States

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v. Mikels, 236 F.3d 550, 551–52 (9th Cir. 2001). This means that Petitioner must make “a

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substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Slack v.

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McDaniel, 529 U.S. 473, 483–84 (2000). He bears the burden of demonstrating that the issues

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are debatable among jurists of reason; that a court could resolve the issues differently; or that

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the questions are adequate to deserve encouragement to proceed further. Slack, 529 U.S. at

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483–84.

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The Court has considered the issues raised by Petitioner with respect to whether they

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satisfy the standard for issuance of a certificate of appealability, and determines that the issues

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do not meet that standard. The Court therefore DENIES Petitioner a certificate of

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appealability.

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IV.

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CONCLUSION
IT IS HEREBY ORDERED that Petitioner’s Motion to Vacate, Set Aside, or Correct

Sentence Pursuant to 28 U.S.C. § 2255, (ECF Nos. 38, 39), is DENIED.
IT IS FURTHER ORDERED that Petitioner’s Motion to Stay, (ECF No. 48), is
DENIED as moot.

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IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED.

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DATED this _____ day of September, 2019.

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___________________________________
Gloria M. Navarro, District Judge
United States District Court

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