SHARION AYCOCK, District Judge.
This matter comes before the court on the motion of William Albright to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. The government has responded to the motion, and the matter is ripe for resolution. For the reasons set forth below, the instant motion to vacate, set aside, or correct sentence will be denied.
The writ of habeas corpus, a challenge to the legal authority under which a person may be detained, is ancient. Duker, The English Origins of the Writ of Habeas Corpus: A Peculiar Path to Fame, 53 N.Y.U.L.Rev. 983 (1978); Glass, Historical Aspects of Habeas Corpus, 9 St. John's L.Rev. 55 (1934). It is "perhaps the most important writ known to the constitutional law of England," Secretary of State for Home Affairs v. O'Brien, A.C. 603, 609 (1923), and it is equally significant in the United States. Article I, § 9, of the Constitution ensures that the right of the writ of habeas corpus shall not be suspended, except when, in the case of rebellion or invasion, public safety may require it. Habeas Corpus, 20 Fed. Prac. & Proc. Deskbook § 56. Its use by the federal courts was authorized in Section14 of the Judiciary Act of 1789. Habeas corpus principles developed over time in both English and American common law have since been codified:
Id.
Section 28 U.S.C. § 2255 permits an inmate serving a sentence after conviction of a federal crime "to move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). As with the writ of habeas corpus, see 28 U.S.C. §§ 2241, 2254, a § 2255 motion sets forth only four bases on which a motion may be made: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence exceeds the statutory maximum sentence; or (4) the sentence is "otherwise subject to collateral attack." 28 U.S.C. § 2255(a). Thus, a prisoner must claim either a constitutional violation or want of subject matter jurisdiction to invoke 28 U.S.C. § 2255. In the absence of constitutional or jurisdictional defects, a federal prisoner may invoke § 2255 only if the error constitutes "a fundamental defect which inherently results in a complete miscarriage of justice." United States v. Addonizio, 442 U.S. 178, 185 (1979).
The district court must first conduct a preliminary review of a section 2255 motion, and "[i]f it plainly appears from the motion, any attached exhibits, and the record of the prior proceeding that the moving party is not entitled to relief, the judge must dismiss the motion." Rules Governing Section 2255 Proceedings, Rule 4(b). If the motion raises a non-frivolous claim to relief, the court must order the Government to file a response or to take other appropriate action. Id. The judge may then require the parties to expand the record as necessary and, if good cause is shown, authorize limited discovery. Rules Governing Section 2255 Proceedings, Rules 6-7.
After reviewing the government's answer, any transcripts and records of prior proceedings, and any supplementary materials submitted by the parties, the court must decide whether an evidentiary hearing is warranted. Rules Governing Section 2255 Proceedings, Rule 8. Under the statute, an evidentiary hearing must be held unless "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). However, the court need not hold an evidentiary hearing if the prisoner fails to produce "independent indicia of the likely merit of [his] allegations." United States v. Edwards, 442 F.3d 258, 264 (5
Ultimately, the petitioner bears the burden of establishing his claims of error by a preponderance of the evidence. See Wright v. United States, 624 F.2d 557, 558 (5
William Albright was convicted in this court for brandishing a firearm during and in relation to a crime of violence (armed bank robbery) under 18 U.S.C. § 924(c). He has filed the instant motion [236] to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, arguing that armed bank robbery does not constitute a crime of violence under the holding in Johnson v. United States, 135 S.Ct. 2551 (2015). He argues that because Johnson held that the residual clause in 18 U.S.C. § 924(e) is unconstitutionally vague, the similarly worded residual clause found in 18 U.S.C. § 924(c) is also unconstitutional. As discussed below, this argument is without substantive merit.
In Johnson the Supreme Court analyzed the Armed Career Criminal Act (ACCA) which provides for an enhanced sentence of 15 years to life for an individual who is convicted of possessing a firearm and has three or more convictions for a serious drug offense or violent felony. The Court found one of the definitions, the "residual" clause, unconstitutionally vague. The ACCA defines "violent felony" as:
18 U.S.C. §924(e)(2)(B) (emphasis added).
The definition set forth in paragraph (i) is the "elements" clause. The non-italicized offenses listed in paragraph (ii) are the "enumerated offenses." The italicized words found in (ii) describing conduct that "presents a serious risk of physical injury to another" are known as the Act's "residual" clause — the clause the Court found to be unconstitutionally vague in Johnson in June of 2015. The Court found that the "indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges." Id. at 2557. However, the Court made clear that its decision "does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act's definition of a violent felony." Id. at 2563.
Mr. Albright argues in his motion that because a post-Johnson offense can only qualify as a crime of violence under ACCA if it is an enumerated offense or satisfies the elements clause, the same must be true for 18 U.S.C. § 924(c). That section defines "crime of violence" as an offense that is a felony and "has as an element the use, the attempted use, or threatened use of physical force against the person or property of another," or an offense that is a felony and "that by its nature involves a substantial risk that physical for against the person or property of another may be used in the course of committing the offense." 18 U.S.C. § 924(c).
Mr. Albright argues that because the residual clause of § 924(c) is similarly worded to § 924(e), it is also unconstitutionally vague. He argues further that his conviction for armed bank robbery does not satisfy the elements/force clause of § 924(c) and must be vacated. As discussed below, none of these arguments has merit.
Mr. Albright's arguments fail in several ways. First, Johnson did not invalidate the residual definition of § 924(c)(3)(B). Second, even if it had done so, armed bank robbery easily satisfies the "elements" clause of § 924(c)(3)(A) as a violent felony. As such, the court need not rely upon the residual clause to find that Mr. Albright's conviction for armed bank robbery is proper.
The Supreme Court expressly declined to extend its holding in Johnson to automatically invalidate other similarly worded statutes:
Johnson v. U.S., 135 S.Ct. at 2561. The Supreme Court expressly declined to extend its holding in Johnson in this way, and this court also declines that invitation.
In addition, the residual clause of § 924(c)(3)(B) does not use the same language as the ACCA in § 924(e). The residual clause of § 924(c)(3)(B) asks whether the crime "by its nature involves a substantial risk that physical force against the person or property of another may be used in the course of committing the crime" (emphasis added). This wording, which requires a court to determine whether there is a substantial risk that physical force may be used against the person or property of another, does not call for the same type of speculation as that of ACCA which required courts to determine if there was a "serious potential risk of physical injury" from a crime.
This court has studied the issue and rejected the application of Johnson to a defendant convicted of armed bank robbery and 924(c). In United States v. Cosner, 1:15CR0096-SA, 2016 WL 5108026 (N.D. Miss., September 20, 2016), the court examined the arguments made by counsel regarding application of Johnson and rejected them. "Cosner's underlying offense conviction under § 2113(a) and (d) qualifies as a crime of violence under the elements clause of § 924(c)(1)(A) even if the residual clause of § 924(c) was unconstitutional under Johnson." This court has also found that "the `residual clause' in § 924(c) does not share the same infirmities as the ACCA's residual clause," rejecting a similar collateral attack on a conviction for brandishing a firearm during and in relation to an armed bank robbery. Miller v. United States, 3:10CR163, Doc. 261, *12-13 (N.D. Miss., October 3, 2016).
The Fifth Circuit has issued several orders denying authorization to Northern District petitioners to pursue successive 2255 motions based on Johnson's application to Section 924(c) convictions. See, In re Andrews, 16-60429 (5
In Gilliland the Fifth Circuit declined to extend Johnson to § 924(c). See In re Fields, 826 F.3d 785, 786-87 (5
District courts across the country have made similar rulings. See, e.g., United States v. Green, CR RDB-15-0526, 2016 WL 277982, at *3 (D. Md., Jan. 22, 2016) (finding that the "Residual Clause" of §924(c) is not unconstitutionally vague in light of Johnson and differentiating the two clauses; United States v. Prickett, 3:14-CR-30018, 2015 WL 5884904, at*2-3 (W.D. Ark., Oct. 8, 2015) (explaining that §924(c)(3)(B) is the very type of statute that the Johnson court indicated would not be unconstitutionally vague), aff'd, 15-3486, 2016 WL 4010515 (8th Cir., July 27, 2016); United States v. Walker, 3:15CR49, 2016 WL 153088, at *9 (E.D. Va., Jan. 12, 2016) (declining to extend Johnson to Section § 924(c)(3)(B)); United States v. Hunter, 2:12CR124, 2015 WL 6443084, at *2 (E.D. Va., Oct. 23, 2015) (noting differences between the residual clauses of §924(e) and §924(c), and refusing to find from the record or Circuit precedent that the Supreme Court in Johnson intended to invalidate the residual clause of § 924(c)); and United States v. Moore, 3:03-CR-169, 2016 WL 126921, at *2 (S.D. Ohio, Jan. 12, 2016) (holding that "nothing in Johnson implies that § 924(c) is unconstitutional.") Mr. Albright's attempt to apply Johnson to § 924(c) is wholly without merit.
Mr. Albright also argues that armed bank robbery is not a crime of violence under the "elements" clause of 18 U.S.C. § 924(c). He argues that this court may not look at the facts of this individual case, but must apply a "categorical approach" as set forth in Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2276, 2283 (2013), looking only to the statutory definition and elements of the offense, rather than the underlying facts. Mr. Albright would thus have the court ignore the facts and evidence presented at his plea hearing — over which the court presided — and instead look only to the language of the bank robbery statute itself.
The court need not resort to the "categorical approach" in this case because the reasons for adopting such an approach do not apply here. As explained in Johnson, a court is required to use the categorical approach in determining if a previous conviction counts as a predicate offense under the Armed Career Criminal Act. Using this approach, the court can avoid having "to reconstruct, long after the original conviction, the conduct underlying that conviction." Johnson, 135 S.Ct. at 2562 (citing Taylor v. United States, 495 U.S. 575, 599-602 (1990)). The basis for the categorical approach is so that courts can avoid delving into and reconstituting the facts of old convictions, not to shield defendants from responsibility for their current actions. This was the holding in at least one case where the court examined this issue. See United States v. Prickett, 3:14-CR-30018, 2015 WL 5884904, at*2-3 (W.D. Ark., Oct. 8, 2015), aff'd, 15-3486, 2016 WL 4010515 (8
Prickett, at *2; see also United States v. Enriques, 8:08CR383, 2016 WL 4273187 at *11 (D. Neb., Aug. 12, 2016) (same). For these reasons, the court will not use the categorical approach when determining whether Mr. Albright's offense is a crime of violence under § 924(c).
Mr. Albright urges the court to apply the categorical approach, as he believes that would support his argument that armed bank robbery is not a crime of violence under the elements clause of § 924(c). However, the plain language of the statute under which Albright was convicted and prior court decisions make clear that armed bank robbery is a crime of violence as contemplated in the elements clause.
Mr. Albright was not charged with bank robbery under 18 U.S.C. § 2113(a); instead, he was charged with armed bank robbery under § 2113(a) and (d). Mr. Albright was convicted at trial on Count one of the Indictment, which charges:
On its face, Count One alleges that Mr. Albright took money by force, violence and intimidation, and that he placed another's life in jeopardy by the use of a dangerous weapon. All of these facts clearly place the offense within the elements clause of 18 USC § 924(c), which defines crime of violence as one having "as an element the use, attempted use, or threatened use of physical force against the person or property of another." The taking of money by force, violence and intimidation from bank employees while placing their lives in jeopardy by the use of a firearm easily satisfies the elements clause of § 924(c), as it involves the use, attempted use or threatened use of physical force.
Other courts have likewise held that bank robbery and armed bank robbery constitute crimes of violence under the elements clause of § 924(c). The Eleventh Circuit rejected a defendant's argument that his conviction for bank robbery could not constitute a crime of violence under §924(c) in the wake of the Johnson holding:
In Re Sams, 16-14515-J, 2016 WL 3997213, *4 (11
Similarly, the Fourth Circuit determined that bank robbery under § 2113(a) or (d) constitutes a crime of violence. In United States v. McNeal, the court considered Johnson challenges from two defendants who alleged that their convictions under 18 U.S.C. §924(c) for brandishing a firearm during a crime of violence should be set aside because armed bank robbery did not constitute a crime of violence. In analyzing the issue, the Fourth Circuit held:
United States v. McNeal, 818 F.3d 141, 153 (4
United States v. Dentler, 492 F.3d. 306 (5
Dentler, 492 F.3d at 309-310, 313.
Dentler involved a substantially different charging document than the one in the present case — and did not allege the use of force, violence or intimidation during the course of robbery. Dentler's holding is not a determination by the Fifth Circuit that bank robbery or armed bank robbery charged under 18 USC § 2113(a) and (d) can never constitute crimes of violence. To the contrary, the Fifth Circuit has upheld the Bureau of Prisons' decision to categorize bank robbery charged in § 2113(a) as a crime of violence under § 924(c)(3). Royal v. Tombone, 141 F.3d 596, 601 (5
Id., at 600-601. Upon reviewing § 2113(a) and the BOP Program Statement, the Fifth Circuit concluded that "[b]ased on our reading of § (c)(3) and § 2113(a), we conclude that Program Statement 5162.02 constitutes a permissible interpretation of § 924(c)(3)." Id. at 601. Mr. Albright's argument to the contrary is without merit.
In sum, for the reasons discussed above, Johnson v. United States does not apply to convictions under the residual clause in 18 U.S.C. § 924(c). In addition, the facts of the present case support the Movant's conviction under the "elements" clause of § 924(c). As such, the instant motion to vacate, set aside, or correct sentence will be denied. A final judgment consistent with this memorandum opinion will issue today.
