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Robinson v. United States

United States District Court, S.D. Alabama, Southern Division

February 24, 2017

ZERRICK CHARLES ROBINSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          KRISTI K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Petitioner's motion to stay and hold Petitioner's motion pursuant to 28 U.S.C. § 2255 in abeyance pending the United States Supreme Court's decision in Lynch v. Dimaya, 137 S.Ct. 31 (2016), the United States' objection, and Petitioner's reply. (Docs. 155, 157, and 158). Upon consideration, and for the reasons discussed herein, the motion to stay and hold in abeyance (Doc. 155) is GRANTED and the matter is STAYED.

         I. Background

         In 2012, Petitioner pled guilty to conspiracy to use and carry a firearm in connection with a crime of violence and possession of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(o) (Count 1); kidnapping, in violation of 18 U.S.C. § 1201(a)(1) (Count 2); and use of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (Count 3). (Doc. 105). He was sentenced to 360 months in the custody of the Bureau of Prisons. (Id.). As noted in the Judgment, “Said term consists of 240 months, as to Count 1; 276 months, as to Count 2; said terms to run concurrently; and, 84 months, as to Count 3; said term to run consecutively to the custody sentences imposed in Counts 1 and 2.” (Doc. 105 at 2).

         On July 22, 2016, the Court of Appeals for the Eleventh Circuit authorized Petitioner to file a second or successive motion pursuant to 28 U.S.C. § 2255 as to his claims regarding §§ 924(c) and 924(o). (Doc. 142).[1] The United States has responded to the petition and Petitioner's reply deadline is set for March 9, 2017. (Doc. 153).

         Petitioner's motion pursuant to § 2255 contains claims that Petitioner was “denied due process when he was convicted and sentenced under the residual clauses of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 924(o) because those clauses were invalidated as unconstitutionally vague by Johnson.” (Doc. 155 at 2). Petitioner's claim is based in part on the holding in Johnson v. United States, 135 S.Ct. 2251 (2015). In Johnson, the United States Supreme Court held that the residual clause of the Armed Career Criminal Act (“ACCA”) (18 U.S.C. § 924(e)) is unconstitutionally vague because it creates uncertainty about how to evaluate the risks posed by a crime and how much risk it takes to qualify as a violent felony. 135 S.Ct. 2251, 2557-58, 2563 (2015).[2]

         Section 924(c)(1) provides for a mandatory consecutive sentence for any defendant who uses a firearm during a crime of violence or a drug trafficking crime. 18 U.S.C. § 924(c)(1).[3]

         Section 924(c)(3)(A)-(B) states:

For purposes of this subsection the term “crime of violence” means 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.

18 U.S.C. § 924(c)(3)(A)-(B). Though the Court of Appeals has acknowledged the similarity of the residual clauses of 18 U.S.C. §§ 924(c) and 924(e), it has yet to decide whether Johnson extends to the residual clause contained in § 924(c)(3)(B). In re Pinder, 824 F.3d 977, 978 (11th Cir. 2016 (“Our Court hasn't decided if Johnson applies to § 924(c)(3)(B). However, the language in § 924(c) and § 924(e) is very similar.”). Additionally, the Court of Appeals' order authorizing Petitioner to file a second or successive motion pursuant to § 2255 stated, “We have not yet decided whether Johnson applies to § 924(c)(3)(B)”). (Doc. 142 at 4).

         In its Order authorizing Petitioner to file a second or successive motion pursuant to § 2255, the Court of Appeals explained, “[W]e grant [Petitioner's] application and allow the district court to decide whether [Petitioner's] conviction under § 924(c) involved a crime of violence that qualifies under § 924(c) after Johnson.” (Doc. 142 at 6). The Court of Appeals also noted, “Because § 924(o) is premised on § 924(c), [Petitioner's] § 924(o) conviction would be undermined if the companion crime of violence is not a valid predicate under § 924(c) following Johnson.” (Doc. 142 at 6). Thus, two of Petitioner's three 2012 convictions may be subject to invalidation. However, Petitioner's unchallenged kidnapping 18 U.S.C. § 1201(a)(1) conviction (Count 2) remains valid. Thus, his 276 month sentence for this crime will not be impacted by the possible invalidation of his convictions pursuant to 18 U.S.C. §§ 924(c) and 924(o).

         II. Motion to Stay and Hold in Abeyance

         On February 9, 2017, counsel from the Federal Defender's Office entered a notice of appearance on behalf of the Petitioner. (Doc. 154). The same day, Petitioner filed the instant motion to stay and hold his § 2555 motion in abeyance. (Doc. 155). As grounds, Petitioner cites the forthcoming United States Supreme Court decision in in Lynch v. Dimaya, where the Court is expected to determine “[w]hether 18 U.S.C. [§] 16(b), as incorporated into the Immigration and Nationality Act's provisions governing an alien's removal from the United States, is unconstitutionally vague.” Brief for Petitioner at (I), Lynch v. Dimaya, 137 S.Ct. 31 (2016) (No. 15-1498), 2016 WL 6768940 at *1. The definition of crime of violence contained in § 16(b) is materially identical to the definition contained in § 924(c).

         The United States has objected to the motion, reiterating its argument that Petitioner's claims are procedurally barred. (Doc. 157 at 1-2).[4] Thus, according to the United States, the Court “need not wait on the resolution of Dimaya or, for that matter, any decision directly or tangentially related to § 924(c)(3)(B)'s residual clause.” (Id. at 2). The Court has examined the parties' arguments related to Petitioner's claims being procedurally barred. For the same reasons discussed in Section B of the Southern District of Florida decision ...


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