MEMORANDUM AND ORDER

LAURIE SMITH CAMP, Senior District Judge.

This matter is before the Court on the Defendant's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, ECF No. 191.

Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts requires initial review of a § 2255 motion, and describes the initial review process:

FACTUAL BACKGROUND

On April 19, 2016, the Defendant pled guilty to Counts I and II of the Indictment, charging him with Bank Robbery in violation of 18 U.S.C. § 2113(a) (Count I), and Use of a Firearm During a Crime of Violence in violation of 18 U.S.C. § 924(c)(1)(A) (Count II). He was sentenced on August 4, 2016, to a term of 99 months on Counts I, and 84 months on Count II, consecutive, followed by three years of supervised release on Counts I and five years on Count II, concurrent. He did not appeal.

The Defendant now argues that the Supreme Court's decision in United States v. Davis, 139 S.Ct. 2319 (2019), provides him with relief because the predicate offense of bank robbery was not categorically a violent crime sufficient to support a conviction on Count II. The Defendant asserts that bank robbery under 18 U.S.C. § 2113(a) may be committed through intimidation, as well as through force and violence, and that the statute includes the offense of entering financial institutions with the intent to commit any felony affecting the institution, or any larceny.

DISCUSSION

As amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2255 imposes a one-year statute of limitations on § 2255 motions, stating in pertinent part:

28 U.S.C. § 2255(f)(1)-(4).

In Davis, decided June 24, 2019, the Supreme Court held the residual clause of 18 U.S.C. § 924(c), defining a "crime of violence" in § 924(c)(3)(B), is unconstitutionally vague. The Defendant asserts that his Motion is timely under § 2255(f)(3), because it was filed within one year of the Supreme Court's decision in Davis, and that bank robbery falls within the residual clause of § 924(c).

Whether or not the Davis decision is one made retroactively applicable to cases on collateral review, and whether the Defendant's Motion is thus timely or not, the Motion is without merit.

"Crime of violence" is defined in 18 U.S.C. § 924(c)(3) as "an offense that is a felony and—(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that 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 offense."

The Defendant's crime of bank robbery was a qualifying predicate offense as a crime of violence under § 924(c)(3)(A). See Estell v. United States, 924 F.3d 1291, 1293 (8th Cir. 2019) (holding bank robbery under § 2113(a) qualifies as crime of violence under § 924(c)(3)(A), even when committed by intimidation).

A petitioner under 28 U.S.C. § 2255 may not appeal an adverse ruling unless he is granted a certificate of appealability. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b)(1). A certificate of appealability will not be granted unless the movant has "made a substantial showing of the denial of a constitutional right." § 2253(c)(2). To show this denial, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Defendant made no such showing, and no certificate of appealability will be issued.

Accordingly,

IT IS ORDERED: