Croft v. USA

Filing 2

ORDER denying Motions to Vacate (2255) as to Joshua Croft (1); denying a certificate of appealability. Signed by Judge Robert C. Jones on 5/24/2017. (KR)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
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UNITED STATES OF AMERICA,
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Plaintiff,
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vs.
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JOSHUA CROFT,
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Defendant.
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2:13-cr-00019-RCJ-GWF
ORDER

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A grand jury indicted Defendant of conspiracy to interfere with commerce by robbery,

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brandishing a firearm in furtherance of a crime of violence, and five counts each of interference

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with commerce by robbery and brandishing a firearm during a crime of violence. In Case No.

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2:13-cr-54, the grand jury also indicted Defendant for a single count of witness tampering with

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respect to the indictment in the present case. Defendant pled guilty pursuant to a consolidated

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plea agreement, and the Court sentenced him to 71 months imprisonment each for witness

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tampering, conspiracy to interfere with commerce by robbery, and one count of interference with

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commerce by robbery, the sentences to run concurrently to one another but consecutively as to

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Defendant’s 84-month sentence for brandishing a firearm in furtherance of a crime of violence

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and as to any sentence to be pronounced in Case No. C283556 in the Eighth Judicial District

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Court of Nevada. The Court denied a habeas corpus motion under 28 U.S.C. § 2255 based on

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alleged ineffective assistance of counsel. Defendant filed a consolidated notice of appeal. Both

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this Court and the Court of Appeals denied a certificate of appealability.
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The Court of Appeals has granted Defendant leave to file a successive habeas corpus

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motion. Defendant argues that his conviction under Count 2 for possession of a firearm during

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and in relation to a crime of violence under 18 U.S.C. § 924(c)(1)(A) was unconstitutional

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because the definition of “crime of violence” upon which § 924(c)(1)(A) relies is

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unconstitutionally vague. The underlying “crime of violence” for Count 2 was conspiracy to

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interfere with commerce by robbery under 18 U.S.C. § 1951 (“Hobbs Act robbery”). An

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identical residual clause has been ruled unconstitutionally vague by the Court of Appeals, see

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Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), cert. granted, Lynch v. Dimaya, 137 S. Ct. 31

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(Sept. 29, 2016), but no court of appeals appears to have decided whether the physical force

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clause of § 924(c)(3)(A) applies to conspiracy to commit Hobbs Act robbery. The district courts

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are divided. See, e.g., United States v. McCoy, --- F. Supp. 3d ----, 2017 WL 375052, at *6

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(W.D.N.Y. 2017) (collecting cases). The Court tends to agree with a post-Johnson ruling of a

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sister court in this District that conspiracy to commit Hobbs Act robbery is a crime of violence.

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See United States v. Wright, 2015 WL 9958034, at *2–3 (D. Nev. Dec. 24, 2015) (Gordon, J.).

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Moreover, the current motion can be decided on narrower grounds, as recently explained

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by Judge Blackburn of the District of Colorado. See United States v. Bowen, --- F. Supp. 3d ----,

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2017 WL 131794, at *3–4 (D. Colo. 2017) (denying a § 2255 motion challenging the residual

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clause of § 924(c)(3)(B)). Here, as there, the motion has not been brought within one year of the

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date on which the conviction became final. See 28 U.S.C. § 2255(f)(1). Nor can Defendant (yet)

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rely on § 2255(f)(3), because the Supreme Court has not yet recognized the right Defendant

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seeks to vindicate. That is, the Supreme Court in Johnson only invalidated the residual clause of

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§ 924(e)(2)(B)(ii), not the differently worded residual clause of § 924(c)(3)(B) at issue here.

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Unless and until the Supreme Court does so, the one-year window for filing a § 2255 motion will

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not reopen.

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CONCLUSION

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IT IS HEREBY ORDERED that the Motions to Vacate, Set Aside, or Correct Sentence
under 28 U.S.C. 2255 (ECF Nos. 102, 104) are DENIED.

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IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

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IT IS SO ORDERED.

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th
DATED: 14th day of of May, 2017.
Dated thisThis 24 dayMarch, 2017.

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_____________________________________
ROBERT C. JONES
United States District Judge

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