Michael Anthony Cernak v. USA

Filing 1

ORDER Denying MOTION to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. 2255 (Hearing Requested) by Michael Anthony Cernak. Signed by Judge Kent J. Dawson on 3/31/2020. (Copies have been distributed pursuant to the NEF - DRS)

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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,
ORDER
v.
MICHAEL ANTHONY CERNAK,

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Case No. 2:03-cr-00534-KJD
2:17-cv-00762-KJD

Defendant.
Presently before the Court is Petitioner Michael Anthony Cernak’s (“Petitioner”) Motion

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

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(#139/164). The Government filed responses and supplements in opposition (#141/165) to which

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Petitioner replied (#143).

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I. BACKGROUND

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On September 18, 2006, Petitioner pleaded guilty to six counts of armed bank robbery

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and one count of possession of a firearm during and in relation to a crime of violence. On

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December 11, 2006 the Court entered Judgment against Defendant on those counts. The Court

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sentenced Petitioner to two hundred four (204) months imprisonment on the six armed bank

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robbery counts to be followed by a consecutive eighty-four month (84) term on the possession of

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a firearm during a crime of violence count.

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On March 16, 2017, Petitioner filed the present 2255 motion, 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). Petitioner's vagueness argument relies on Johnson v. United States, 135 S. Ct. 2551

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(2015). In Johnson, the U.S. Supreme Court ruled that the residual clause of the Armed Career

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Criminal Act (ACCA) is unconstitutionally vague. Johnson, 135 S. Ct. at 2557. Petitioner

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accordingly points to language in § 924(c)'s residual clause, which is identical to that of the

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ACCA's residual clause, for the proposition that both provisions, and any convictions and

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sentences arising therefrom, are invalid.

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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 Supreme

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Court may hold in the future that Johnson extends to sentences imposed ... pursuant to [§ 924(c)],

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but until then [the petitioner's] motion is untimely.”). However, the Ninth Circuit Court of

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Appeals granted Petitioner leave to file this successive 2255 motion and the United States no

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longer opposes it on timeliness grounds.

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II. Legal Standard

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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 the

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

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is otherwise subject to collateral attack.” Id.; see United States v. Berry, 624 F.3d 1031, 1038

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(9th Cir. 2010). When a petitioner seeks relief pursuant to a right newly recognized by a decision

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of the United States Supreme Court, a one-year statute of limitations applies. 28 U.S.C. §

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2255(f)(3). That one-year limitation begins to run from “the date on which the right asserted was

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

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IV. Analysis

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Petitioner argues that his sentence for Possession of a Firearm in Furtherance of a Crime

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of Violence arose under an unconstitutionally vague provision of 18 U.S.C. § 924(c). Title 18

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United States Code Section 924(c) criminalizes the use or carrying of a firearm in relation to a

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“crime of violence,” and it imposes mandatory minimum sentences that must run consecutive to

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any other sentence. An offense may qualify as a crime of violence under § 924(c) through either

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of two clauses: § 924(c)(3)(A) or § 924(c)(3)(B). Section 924(c)(3)(A), also known as the

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statute's “force clause,” applies if an individual is convicted of a predicate crime that “has as an

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element the use, attempted use, or threatened use of physical force against the person or property

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of another.” By contrast, § 924(c)(3)(B), known as the “residual clause” of the statute, is much

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broader; it applies if the individual is convicted of any predicate felony offense “that by its

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nature, involves a substantial risk that physical force against the person or property of another

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may be used in the course of committing the offense.” The U.S. Supreme Court recently

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invalidated § 924(c)(3)(B) after holding that its language is unconstitutionally vague. See United

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States v. Davis, 139 S. Ct. 2319, 2335–36 (2019). However, the force clause, § 924(c)(3)(A), has

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not been deemed unconstitutional.
Here, Petitioner argues that his sentence based on Possession of a Firearm in Furtherance

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of a Crime of Violence violates due process because the Court imposed it under the

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unconstitutionally vague residual clause, 18 U.S.C. § 924(c)(3)(B). To make that argument,

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Petitioner points to his predicate offense of Armed Bank Robbery in violation of 18 U.S.C. §

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2113. He claims that Armed Bank Robbery is not a crime of violence by its elements, and thus

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

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the unconstitutional residual clause. The Ninth Circuit in United States v. Watson, 881 F.3d 782

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(9th Cir.), cert. denied, 139 S. Ct. 203 (2018), rejected the same arguments made by Petitioner

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when it held that federal armed bank robbery constitutes a crime of violence by its elements. 881

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F.3d at 786. Petitioner's conviction for Armed Bank Robbery therefore implicates the force

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clause, 18 U.S.C. § 924(c)(3)(A), not the unconstitutional residual clause—rendering Petitioner

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ineligible for relief on the grounds argued in his 2255 Motion. Accordingly, the Court denies

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Petitioner’s § 2255 motions.

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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 the

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questions are adequate to deserve encouragement to proceed further. Slack, 529 U.S. at 483–84.

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

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standard for issuance of a certificate of appealability, and determines that the issues do not meet

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that standard. The Court therefore denies Petitioner a certificate of appealability.

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V. Conclusion

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Accordingly, IT IS HEREBY ORDERED that Petitioner Michael Anthony Cernak’s
Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (#139/164) is
DENIED;
IT IS FURTHER ORDERED that the Clerk of the Court enter JUDGMENT for

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Respondent and against Petitioner in the corresponding civil action, 2:17-cv-0762-KJD, and

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close that case;

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

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DATED this 31st day of March 2020.

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_____________________________
Kent J. Dawson
United States District Judge

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