Miller v. USA

Filing 19

MEMORANDUM DECISION AND ORDER LIFTING STAY AND ORDER TO SHOW CAUSE. The court ORDERS that the stay in this case is lifted. Petitioner shall respond to this Order to Show Cause on or before 3/11/2022. Petitioner is ordered to show cause why this case should not be dismissed on the ground that Petitioner is entitled to no relief. Signed by Judge Dale A. Kimball on 2/10/2022. (eat)

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IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH

TYLER JAMES MILLER,
Petitioner,
vs.

UNITED STATES OF AMERICA,
Respondent.

I.

MEMORANDUM DECISION AND
ORDER LIFTING STAY
AND
ORDER TO SHOW CAUSE
Case No. 1:16-cv-68-DAK
Judge Dale A. Kimball

LIFTING STAY
On June 13, 2016, Petitioner filed a Motion to Correct Sentence under 28 U.S.C. § 2255

based on Johnson v. United States, 576 U.S. 591 (2015). In his underlying criminal case,
Petitioner pled guilty to one count of unlawfully discharging a firearm during and in relation to a
‘crime of violence’ in violation of 18 U.S.C. § 924(c). The § 924(c) conviction was based on a
Hobbs Act Robbery in violation of 18 U.S.C. § 1951, alleged in Count 3 of the Indictment. On
February 3, 2015, Judge Benson sentenced Petitioner to 120 months imprisonment based on this
crime.
Petitioner asserts that his § 924(c) conviction should be vacated because Hobbs Act
robbery cannot be classified as a crime of violence. Although Johnson pertained to the residual
clause in the Armed Career Criminal Act, Petitioner asserted that the residual clause in §
924(c)(3)(B) was materially indistinguishable. Given the large number of § 2255 motions filed

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in relation to Johnson and the need to receive guidance from higher courts on Johnson’s
application to other statutes, this court stayed the case based on the district-wide General Order
16-002.
The United States Supreme Court ruled that the residual clause in § 18 U.S.C. §
924(c)(3)(B) is also unconstitutionally vague, United States v. Davis, 139 S. Ct. 2319, 2336
(2019). However, the Tenth Circuit, in United States v. Melgar-Cabrera, 892 F.3d 1053, 1060,
1064-66 (10th Cir. 2018), held that Hobbs Act robbery is categorically a crime of violence under
the elements clause of § 924(c)(3)(A), not the residual clause. Petitioner, therefore, asked the
court to stay the case until the Tenth Circuit resolved a related Hobbs Act issue in United States
v. Toki, 17-4153 (10th Cir.), which the court did.
The Supreme Court granted certiorari, vacated the Tenth Circuit’s Toki ruling, 822 F.
App’x 848 (10th Cir. 2020), and remanded the case “for further consideration in light of Borden
v. United States, 593 U.S. ----, 141 S. Ct. 1817, 210 L. Ed. 2d 63 (2021).”1 Maumau v. United
States, 142 S. Ct. 57 (2021). Upon remand, the Tenth Circuit ordered that Toki’s § 924(c)
conviction “based on predicate [Violent Crimes in Aid of Racketeering] offenses” be vacated.
United States v. Toki, Case No. 17-4153, 2022 WL 274411, at *3 (10th Cir. Jan. 31, 2022).
Significantly, however, the Tenth Circuit left the Hobbs Act convictions undisturbed. Id. (noting
petitioners did “not argue that Borden undermined the validity of . . . § 924(c) convictions
predicated on Hobbs Act robbery”).

The Supreme Court held in Borden that “[o]ffenses with a mens rea of recklessness do not
qualify as violent felonies under [the Armed Career Criminal Act].” Borden, 141 S. Ct. at 1834.
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Petitioner has asked the court to continue the stay in this case pending a decision by the
Tenth Circuit in United States v. Baker, Tenth Cir. No. 20-3062. Baker was briefed, argued, and
then abated pending the Supreme Court’s issuance of a decision in United States v. Justin
Eugene Taylor, No. 20-1459. The question presented to the Supreme Court in Taylor is whether
18 U.S.C. § 924(c)(3)(A)’s definition of ‘crime of violence” excludes attempted Hobbs Act
robbery, in violation of 18 U.S.C. § 1951(a). Although one of Baker’s convictions was for
attempted Hobbs Act Robbery, Petitioner’s conviction does not involve attempt. Therefore, the
court sees no reason for maintaining the stay pending the Supreme Court’s resolution in Taylor
and the Tenth Circuit’s subsequent decision in Baker.
Based on the development of caselaw since Johnson, the court concludes a stay in this
case is no longer warranted. Accordingly, the court ORDERS that the stay in this case is lifted.
II.

ORDER TO SHOW CAUSE
Section 924(c) has both the elements or force clause, § 924(c)(3)(A), and the residual

clause, § 924(c)(3)(B). Prior to Davis, the Tenth Circuit had already ruled that the residual
clause was unconstitutional. See United States v. Salas, 889 F.3d 681, 686 (10th Cir. 2018). The
fact that § 924(c)(3)(B) is unconstitutional, however, does not address the matter before this
court.
In United States v. Melgar-Cabrera, the Tenth Circuit ruled that a Hobbs Act robbery
“categorically constitute[s] a crime of violence under what is sometimes called the statute’s
elements or force clause, § 924(c)(3)(A).” 892 F.3d 1053, 1060–66 (10th Cir. 2018). Later that
same year, the Tenth Circuit reaffirmed the holding in Melgar-Cabrera that a Hobbs Act robbery
is a crime of violence. United States v. Jefferson, 911 F.3d 1290, 1296–99 (10th Cir. 2018). The
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same holding also may be found in United States v. Dubarry, 741 F. App’x 568, 570 (10th Cir.
2018) (denying Certificate of Appealability because a “Hobbs Act robbery is categorically a
crime of violence under the elements clause of § 924(c)(3)(A) because that clause requires the
use of violent force”); United States v. Rojas, 748 F. App’x 777, 779 (10th Cir. 2018) (applying
Melgar-Cabrera and Dubarry and concluding “that Hobbs Act robbery is categorically a crime
of violence under § 924(c)(3)(A)”); and United States v. Myers, 786 F. App’x 161, 162 (10th Cir.
2019) (rejecting that Davis constituted an “intervening Supreme Court authority” that required
reevaluation of Melgar-Cabrera, but stating even if reconsideration were required, the Court
“would reach the same conclusion: Hobbs Act robbery is a crime of violence under the elements
clause of § 924(c))”). Moreover, the most recent Tenth Circuit decision in Toki leaves MelgarCabrera undisturbed even in light of Davis and Borden. See Toki, 2022 WL 274411, at *3.
Because the weight of this authority shows that Hobbs Act robbery constitutes a crime of
violence under § 924(c) and Petitioner’s conviction does not involve an attempted Hobbs Act
robbery, pursuant to 28 U.S.C. § 2255(b), the court orders Petitioner to show cause why this case
should not be dismissed on the ground that Petitioner “is entitled to no relief.” Petitioner shall
respond to this Order to Show Cause on or before March 11, 2022.
DATED this 10th day of February, 2022.
BY THE COURT:

____________________________________
Dale A. Kimball,
United States District Judge

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