Davies v. USA

Filing 2

ORDER as to Robert Earl Davies (1), denying Motion to Vacate (2255); denying as moot Motion to Appoint Counsel; denying a certificate of appealability. Signed by Judge Larry R. Hicks on 9/14/2017. (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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v.

3:12-cr-00044-LRH-VPC
ORDER

ROBERT EARL DAVIES,
Defendant.

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Before the court is petitioner Robert Earl Davies’ motion to vacate, set aside, or correct

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his sentence pursuant to 28 U.S.C. § 2255. ECF No. 26. The United States filed a response (ECF

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No. 31), but Davies failed to reply. Because Davies was not sentenced under the Armed Career

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Criminal Act (“ACCA”) or under a federal statute or sentencing guideline that incorporates a

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crime-of-violence definition, the U.S. Supreme Court’s decision in Johnson v. United States, 135

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S. Ct. 2551 (2015) is inapplicable to his sentence. The court will therefore deny his motion and

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deny him a certificate of appealability.

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I.

Background
On November 6, 2012, Davies pled guilty, without the benefit of a plea agreement, to

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five counts of Hobbs Act robbery under 18 U.S.C. § 1951. ECF No. 17; see also ECF No. 1. On

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April 1, 2013, this court sentenced him to 84 months of imprisonment. ECF Nos. 22–23.

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II.

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Legal standard
Pursuant to 28 U.S.C. § 2255, a prisoner may move the court to vacate, set aside, or

correct a sentence if “the sentence was imposed in violation of the Constitution or laws of the

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United States, or . . . the court was without jurisdiction to impose such sentence, or . . . the

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sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral

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attack.” 28 U.S.C. § 2255(a). “Unless the motion and the files and records of the case

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conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to

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be served upon the United States attorney, grant a prompt hearing thereon, determine the issues

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and make findings of fact and conclusions of law with respect thereto.” Id. § 2255(b).

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III.

Discussion

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A.

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Davies argues that he is entitled to relief under Johnson v. United States. There, the U.S.

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Supreme Court ruled that a portion of the ACCA’s violent-felony definition, often referred to as

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the “residual clause,” was unconstitutionally vague (i.e., “void for vagueness”). Johnson, 135 S.

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Ct. at 2557. The ACCA applies to certain defendants charged with unlawful possession of a

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firearm under 18 U.S.C. § 922(g), such as being a felon in possession of a firearm under

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§ 922(g)(1). 18 U.S.C. § 924(e). The Supreme Court subsequently held that Johnson announced

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a new substantive rule that applied retroactively to cases on collateral review, Welch v. United

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States, 136 S. Ct. 1257 (2016), thus allowing defendants to challenge their ACCA convictions

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under section 2255.

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Davies is not entitled to relief

Moreover, Johnson has also sparked challenges to other federal criminal statutes and

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sections of the U.S. Sentencing Guidelines (“U.S.S.G.”) that incorporate a “crime-of-violence”

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definition that includes a residual clause similar or identical to the ACCA’s. Although some of

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these issues are currently on appeal, the Supreme Court recently ruled in Beckles v. United

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States, 137 S. Ct. 886 (2017) that “the advisory Sentencing Guidelines, including [U.S.S.G.]

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§ 4B1.2(a)’s residual clause, are not subject to a challenge under the void-for-vagueness

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doctrine.” Beckles, 137 S. Ct. at 896.

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Here, Davies was convicted of five counts of Hobbs Act robbery and was therefore not

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sentenced under the ACCA. Additionally, none of the sentencing guidelines that applied to his

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offenses incorporated a crime-of-violence definition. And even if such guidelines had applied,

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Beckles would foreclose Davies’ claim for relief. Accordingly, the court will deny his motion.
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B.

The court will deny Davies a certificate of appealability

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Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), “an

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appeal may not be taken to the court of appeals from . . . the final order in a proceeding under

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section 2255” unless a district court issues a certificate of appealability (“COA”) based on “a

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substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(1)(B). “The

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petitioner must demonstrate that reasonable jurists would find the district court’s assessment of

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the constitutional claims debatable or wrong. To meet this threshold inquiry, the petitioner must

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

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issues in a different manner; or that the questions are adequate to deserve encouragement to

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proceed further.” Allen v. Ornoski, 435 F.3d 946, 951 (9th Cir. 2006) (internal citations,

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quotation marks, and brackets omitted).
As discussed above, Johnson v. United States is inapplicable to Davies’ sentence, and he

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has therefore failed to make any showing of a denial of a constitutional right. The court will

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therefore deny him a COA.

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IV.

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Conclusion
IT IS THEREFORE ORDERED that petitioner Robert Earl Davies’ motion to vacate, set

aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (ECF No. 26) is DENIED.
IT IS FURTHER ORDERED that Davies’ motion for appointment of counsel (ECF
No. 25) is DENIED as MOOT.
IT IS FURTHER ORDERED that Davies is DENIED a certificate of appealability.
IT IS SO ORDERED.

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DATED this 14th day of September, 2017.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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