Armstrong v. USA

Filing 6

ORDER denying Motion to Vacate under 28 U.S.C. 2255. Signed by Judge Howard D. McKibben on 6/26/2017. (Copies have been distributed pursuant to the NEF - KR)

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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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Plaintiff,
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vs.
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WILLIAM EDWARD ARMSTRONG,
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Defendant.
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_________________________________ )

3:06-cr-00073-HDM
3:16-cv-00073-HDM
ORDER

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On February 16, 2016, defendant filed a motion to vacate, set
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aside or correct sentence pursuant to 28 U.S.C. § 2255 (ECF No.
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32).

On March 14, 2016, the government filed a response (ECF No.

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36), and on March 21, 2016, the defendant filed a reply (ECF No.
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37).

On March 23, 2016, and June 3, 2016, the court stayed

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proceedings pending decisions by the Supreme Court and Ninth
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Circuit Court of Appeals (ECF Nos. 38 & 39).
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the court lifted the stay (ECF No. 40).
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On August 3, 2016,

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On September 9, 2016, defendant filed an “Emergency Motion for

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Status Conference” (ECF No. 41).

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September 28, 2016, the court indicated that it was inclined to

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further stay proceedings pending the Supreme Court’s decision in

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Beckles v. United States, No. 15-8544.

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stay would not be prejudicial because even on the merits defendant

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likely was not entitled to § 2255 relief.

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stay and asked the court to proceed to decide his case on the

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merits.

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At a status conference on

The court indicated that a

Defendant opposed the

(See ECF No. 44).

On March 6, 2017, the court ordered the defendant to show

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cause why Beckles did not require the court to deny his motion.

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April 20, 2017, defendant filed a motion for voluntary dismissal of

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his § 2255 motion pursuant to Federal Rule of Civil Procedure

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41(a)(2) (ECF No. 48).

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April 21, 2017, but vacated its order after the government filed a

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motion to reconsider (ECF No. 50).

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motion to reconsider (ECF No. 53), and the government has replied

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(ECF No. 55).

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On

The court initially granted the motion on

Defendant has responded to the

While the parties disagree on the applicability of Rule 41(a)

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to § 2255 proceedings, the court need not decide the issue.

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assuming Rule 41(a)(2) can be applied, it is within the court’s

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discretion whether to grant a dismissal under that rule.

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R. Civ. P. 41(a)(2) (“[A]n action may be dismissed at the

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plaintiff’s request only by court order, on terms that the court

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considers proper.”); Stevedoring Servs. of Am. v. Armilla Int’l

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B.V., 889 F.2d 919, 921 (9th Cir. 1989) (“[A] motion for voluntary

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dismissal under Rule 41(a)(2) is addressed to the district court’s

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sound discretion . . . .”).

Even

See Fed.

“The purpose of the rule is to permit
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a plaintiff to dismiss an action without prejudice so long as the

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defendant will not be prejudiced, or unfairly affected by

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dismissal.”

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that, under the circumstances of this case, the government would be

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unfairly affected by a dismissal of defendant’s petition without

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prejudice.

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defendant’s motion, but defendant sought a resolution of his motion

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well before the Supreme Court’s decision in Beckles – even after

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the court had indicated it would likely be denied.

Id. (internal citations omitted).

The court concludes

Not only was the government required to respond to

If the court

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had proceeded as defendant then wished, and the motion had been

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denied, defendant would not have been able to file any second or

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successive motion – and the government would not be required to

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respond to any such motion – unless defendant first received

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authorization from the Court of Appeals.

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voluntary dismissal at this juncture, however, the government may

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have to relitigate whether any future motions filed by defendant

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are subject to the second or successive limitation of 28 U.S.C. §

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2255(h).

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defendant’s motion on its merits now and therefore DENIES the

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motion for voluntary dismissal.

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reconsider is accordingly GRANTED.

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If the court allows

The court therefore concludes it should decide

The government’s motion to

In his § 2255 motion, defendant seeks relief based on Johnson

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v. United States, 135 S. Ct. 2551 (2015).

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Court held that the residual clause in the ACCA’s definition of

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“violent felony” is unconstitutionally vague.

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charged or sentenced under the ACCA.

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career offender under U.S.S.G. § 4B1.1.

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qualifies as a career offender if:
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In Johnson, the Supreme

Defendant was not

Rather, he was found to be a
Under § 4B1.1, a defendant

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(1) the defendant was at least eighteen years old at the

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time the defendant committed the instant offense of

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conviction; (2) the instant offense of conviction is a

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felony that is either a crime of violence or a controlled

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substance offense; and (3) the defendant has at least two

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prior felony convictions of either a crime of violence or

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a controlled substance offense.

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At sentencing, the court determined that defendant qualified as a

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career offender because he had two prior crimes of violence and his

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instant offense was a crime of violence.

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same: bank robbery in violation of 18 U.S.C. § 2113(a).

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definition of “crime of violence” for purposes of the career

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offender guideline includes a residual clause that is identical to

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that in the ACCA.

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Johnson invalidated this residual clause, that bank robbery in

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violation of § 2113(a) qualified as a “crime of violence” only

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under the residual clause, and that he is therefore entitled to

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relief.

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All three crimes were the

See U.S.S.G. § 4B1.2(a).

The

Defendant argued that

On March 6, 2017, the United States Supreme Court determined

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that Johnson does not apply to the Guidelines.

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States, 580 U.S. — , 137 S. Ct. 886 (Mar. 6, 2017).

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claim for relief depends on Johnson applying to the Guidelines and

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the Supreme Court has held Johnson does not apply to the

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Guidelines, defendant is not entitled to any relief.

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2255 motion (ECF No. 32) therefore must be and hereby is DENIED.

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The standard for issuance of a certificate of appealability

Beckles v. United
As defendant’s

Defendant’s §

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calls for a “substantial showing of the denial of a constitutional

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right.”

28 U.S.C. § 2253(c).

The Supreme Court has interpreted 28
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U.S.C. § 2253(c) as follows:
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. The
issue becomes somewhat more complicated where,
as here, the district court dismisses the
petition based on procedural grounds. We hold
as follows: When the district court denies a
habeas petition on procedural grounds without
reaching the prisoner’s underlying
constitutional claim, a COA should issue when
the prisoner shows, at least, that jurists of
reason would find it debatable whether the
petition states a valid claim of the denial of
a constitutional right and that jurists of
reason would find it debatable whether the
district court was correct in its procedural
ruling.

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Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also James v.

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Giles, 221 F.3d 1074, 1077-79 (9th Cir. 2000).

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further illuminated the standard for issuance of a certificate of

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appealability in Miller-El v. Cockrell, 537 U.S. 322 (2003).

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Court stated in that case:

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The Supreme Court

The

We do not require petitioner to prove, before
the issuance of a COA, that some jurists would
grant the petition for habeas corpus. Indeed,
a claim can be debatable even though every
jurist of reason might agree, after the COA has
been granted and the case has received full
consideration, that petitioner will not
prevail. As we stated in Slack, “[w]here 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.”
Miller-El, 537 U.S. at 338 (quoting Slack, 529 U.S. at 484).
The court has considered the issues raised by defendant with
respect to whether they satisfy the standard for issuance of a
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certificate of appeal and determines that none meet that standard.

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The court will therefore deny defendant a certificate of

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appealability.

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In accordance with the foregoing, the government’s motion to

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reconsider (ECF No. 50) is GRANTED.

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voluntary dismissal (ECF No. 48) and his motion pursuant to § 2255

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(ECF No. 32) are DENIED.

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certificate of appealability.

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The defendant’s motion for

The court further denies defendant a

IT IS SO ORDERED.
DATED: This 26th day of June, 2017.

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____________________________
UNITED STATES DISTRICT JUDGE

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