Petition for Writ of Certiorari — Colby Todd Dubose, Petitioner v. United States
Supreme Court briefMar 16, 2023
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No. _ _ _ _ _ __ _
IN THE SUPREME COURT
OF THE UNITED STATES
COLBY TODD DUBOSE,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
On Petition For Writ Of Certiorari To
The United States Court Of Appeals
For The Ninth Circuit
PETITION FOR WRIT OF CERTIORARI
Elizabeth G. Daily
Assistant Federal Public Defender
101 SW Main Street, Suite 1700
Portland, Oregon 97204
(503) 326-2123
Attorney for Petitioner
QUESTION PRESENTED
In United States v. Stitt, this Court held that generic burglary extends to burglaries
of some non-permanent and mobile structures; specifically, those that are "customarily
used or adapted for overnight accommodation." 139 S. Ct. 399, 406-07 (2019). Oregon
first-degree burglary, by contrast, covers a broader range of non-permanent and mobile
structures; those "adapted for overnight accommodation of persons or for carrying on
business therein." Or. Rev. Stat.§ 164.205(1) (emphasis added); Or. Rev. Stat.§ 164.225.
The question presented here involves the low standard for issuance of a certificate of
appealability:
Could reasonable jurists debate whether, after Stitt, Oregon first-degree
burglary remains categorically broader than generic burglary because the
state offense covers non-permanent and mobile structures "adapted ... for
carrying on business therein," Or. Rev. Stat. § 164.205(1), whereas Stitt's
ruling only reached structures customarily used or adapted for overnight
accommodation?
PARTIES TO THE PROCEEDINGS
All parties appear in the caption of the case on the cover page. The petitioner, Colby
Todd Dubose, is in the custody of the Federal Bureau of Prisons serving a sentence imposed
under the Armed Career Criminal Act. He is presently confined at USP Coleman II with a
projected release date of April 6, 2029. The respondent is the United States.
RELATED PROCEEDINGS
District court underlying criminal docket and 28 U.S.C. § 2255 proceeding: United
States v. Dubose, Case No. 6:08-cr-60053-AA (D. Or.).
Circuit court appeal from denial of 28 U.S.C. § 2255 motion: United States v.
Dubose, Case No. 22-35210 (9th Cir.).
TABLE OF CONTENTS
Page
Table Of Authorities .......................................................................................................... iii
Orders Below And Jurisdiction .............................. .............................................................. 1
Relevant Statutory And Constitutional Provisions ............................ .................................. 2
Statement OfThe Case ........... ............................................................................................. 3
Reasons For Granting The Petition .............................................. ................... .... ................. 6
I.
The circuit court's denial of a certificate of appealability warrants summary
reversal ............................ ........................................................... ......... ....... .......... ..... 6
A.
The standard for issuance of a certificate of appealability is
intentionally easy to meet, requiring only that a claim be reasonably
debatable ....... ........ ............................. ....... ........... ... ... ..... .................... ...........6
B.
Because the district court's ruling was at least subject to reasonable
debate, a certificate of appealability should have issued ............................... 7
C.
1.
In Stitt, this Court held that generic burglary covers vehicles
and non-permanent structures that are adapted or customarily
used for overnight accommodation .................................................... 8
2.
Oregon defines "building" for first- and second-degree
burglary to include non-permanent structures "adapted for
overnight accommodation of persons or for carrying on
business therein." ...... .... .... ................................................. ................. 9
3.
Oregon first-degree burglary is broader than generic burglary
as defined in Stitt . ............................................................................. 11
Summary reversal is warranted because the Ninth Circuit's failure to
issue a certificate of appealability was obviously wrong under this
Court's precedent. ................................. ......... .............................. ................ 16
Conclusion ............................................................................................... .......................... 17
1
INDEX TO APPENDIX
United States Court of Appeals Denial of Certificate of Appealability ............................ .1
United States District Court Opinion and Order ................................................................. 2
18 U.S.C. § 924(e) (2008) .............................................. .... ......... ...................................... 16
28 U.S.C. § 2253 (2023) .............................. ..... .............................. .................................. 17
28 U.S.C. § 2255 (2023) ................................................................................................... 18
Or. Rev. Stat. § 164.225 (1983) .................... ........... ............. .......................... .................. 20
Or. Rev. Stat. § 164.205(1) & (2) (1983) .......................................................................... 20
11
TABLE OF AUTHORITIES
Page
SUPREME COURT OPINIONS
Buck v. Davis,
580 U.S. 100 (2017) ....................... ................................................... .... .................... 6 7
Erickson v. Pardus,
551 U.S. 89 (2007) ....................................... .. .. ...... ...... .. ............................................. 16
Johnson v. United States,
576 U.S. 591 (2015) ......................................... .......................................... ............... 4, 7
Mathis v. United States,
579 U.S. 500 (2016) ......................................................................................... ... 8, 9, 14
Miller-El v. Cockrell,
537 U.S. 322 (2003) .......................... ......... .......... .... ...... ....... ............. ....................... 6, 7
Slack v. McDaniel,
529 U.S. 473 (2000) ...... .......... ...................................................................................... 6
Taylor v. United States,
495 U.S. 575 (1990) .......................... ........................ .. .................................. 8, 9, 11, 14
United States v. Stitt,
139 S. Ct. 399 (2019) .................................................. 4, 5, 6, 7, 8, 9, 11, 12, 13, 14, 15
Welch v. United States,
578 U.S. 120 (2016) ................... ............................. .. ............................ ........................ 7
FEDERAL COURT OPINIONS
Diaz-Flores v. Garland,
993 F.3d 766 (9th Cir. 2021) .......................... ..... ..................... ................................... 10
Faulkner v. United States,
926 F.3d 475 (8th Cir. 2019) ..................................................................................... .. 15
Mendoza-Garcia v. Garland,
36 F.4th 989 (9th Cir. 2022) ... ....... .................. ............................................... 13-14, 15
111
United States v. Cisneros,
826 F.3d 1190 (9th Cir. 2016) ............................................................................. 4, 5, 12
United States v. Greer,
938 F.3d 766 (6th Cir. 2019) .................. ........ .......... ....................... ............ ............ .... 15
United States v. Grisel,
488 F.3d 844 (9th Cir. 2007) (en bane) ....... .... .. .............. ....... ........ .............. .... ..... 11, 12
United States v. Jones,
951 F.3d 1138 (9th Cir. 2020) ........................................................................... 6, 13, 15
United States v. Mayer,
560 F .3d 948 (9th Cir. 2009) ....................................................................................... 12
United States v. Perry,
862 F.3d 620 (7th Cir. 2017) ..... ........... .... ......... ..... .. ... ......... .. .... .... ... ..... ... .... ...... ........ 15
UNITED STATES CODE
18 U.S.C. § 922(g)(l) .... ....................... ........................................................ .... ..... ............. 3
18 U.S.C. § 924(c) ......................................................................................................... 3 4
18 U.S.C. § 924(e) ..... ......... ...... .......... ..... .......... ... .. .. ... ..... .. .... .... .. ........... ........ ................... 3
18 U.S.C. § 2113(a) ......... ...... ...................................................... ...................................... 3
18 U.S.C. § 2113(d) ....... ....... ....... .............. ........ .. .................. ....... .................... .............. ... 3
28 U.S.C. § 1254(1) .......................... .. ................................................. ............... .. ......... .... 2
28 u.s.c. § 2253 ············ ·········· ········· ··· ············· ······························································ 2, 7
28 U.S.C. § 2255 ............................... ......................... ....................... ............... .......... 2, 4, 6
STATE CASES
State v. Fitzgerald,
315 Or. App. 336,500 P.3d 721 (2021) ................. .................... .... ... ....... ................... 10
State v. Nol/en,
196 Or. App. 141, 100 P.3d 788 (2004) ................................................................ 10, 12
lV
State v. Spencer,
24 Or. App. 385, 545 P.2d 611 (1976) .......................................... .............. .... .. .... 10, 12
State v. Webb,
262 Or. App. 1, 324 P.3d 522 (2014) .......................................................................... 10
STATE STATUTES
Iowa Code Ann. § 702.12 .................................................................................................. 8
Or. Rev. Stat. § 164.205(1) ................................................................ 3, 5, 8, 10, 11, 12, 14
Or. Rev. Stat. § 164.215(1) .................................................................. .......................... 2, 9
Or. Rev. Stat. § 164.225 ................................................................................. 2, 3, 8, 10, 14
Or. Rev. Stat. § 164.235 ..................................................................................................... 2
V
No. _ _ _ __ _ _ __
IN THE SUPREME COURT
OF THE UNITED STATES
COLBY TODD DUBOSE,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
On Petition For Writ Of Certiorari To
The United States Court Of Appeals
For The Ninth Circuit
The petitioner, Colby Todd Dubose, respectfully requests that a writ of certiorari
issue to review the judgment of the United States Court of Appeals for the Ninth Circuit
entered on December 16, 2022, denying the request for a certificate of appealability.
Orders Below And Jurisdiction
The circuit court and district court decisions below were unpublished and are
contained in the attached Appendix. The district court entered an opinion denying the
petition for habeas corpus relief and declining to issue a certificate of appealability on
March 1, 2022. App'x 2. After the petitioner filed a timely notice of appeal and motion for
1
issuance of a certificate of appealability, the Ninth Circuit denied the request for a
certificate of appealability on December 16, 2022. App 'x 1.
This Court's jurisdiction is invoked under 28 U.S.C. § 1254(1).
Relevant Statutory And Constitutional Provisions
The statute providing for collateral review of federal sentences is 28 U.S.C. § 2255.
App'x 18.
Under 28 U.S.C. § 2253(c) a certificate of appealability issued by a "circuit justice
or judge" is required to appeal from a final order in a§ 2255 proceeding. App'x 17.
In 1983, Oregon defined burglary in the first degree as follows:
(1) A person commits the crime of burglary in the first degree if the person
violates ORS 164.215 and the building is a dwelling, or if in effecting entry
or while in a building or in immediate flight therefrom the person:
(a) Is armed with a burglar's tool as defined in ORS 164.235 or a deadly
weapon; or
(b) Causes or attempts to cause physical injury to any person; or
(c) Uses or threatens to use a dangerous weapon.
Or. Rev. Stat.§ 164.225(1)(1983); App'x 20. State law defines building to include vehicles
and other non-permanent structures:
"Building," in addition to its ordinary meaning, includes any booth, vehicle,
boat, aircraft or other structure adapted for overnight accommodation of
persons or for carrying on business therein. Where a building consists of
separate units, including, but not limited to, separate apartments, offices or
rented rooms, each unit is, in addition to being a part of such building, a
separate building.
2
Or. Rev. Stat. § 164.205(1) (1983); App'x 20. And a "dwelling" is "a building which
regularly or intermittently is occupied by a person lodging therein at night, whether or not
a person is actually present." Or. Rev. Stat. § 164.225(2) (1983); App'x 20.
Statement Of The Case
In May 2008, Colby Dubose committed a bank robbery, displaying a firearm to the
teller and later brandishing the firearm at two witnesses who followed him away from the
bank. A federal grand jury issued a three-count indictment charging him with armed bank
robbery, in violation of 18 U.S.C. § 2113(a) and (d) (Count 1), carrying and using a firearm
during a crime of violence, in violation of 18 U.S.C. § 924(c)(l)(A) (Count 2), and
unlawfully possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g)(l) and 924(e)
(Count 3). ECF 7. 1 Mr. Dubose pleaded guilty to all three counts.
Pursuant to the parties' plea agreement, the sentencing court applied the Armed
Career Criminal Act (ACCA), 18 U.S.C. § 924(e), to Count 3, increasing the statutory
sentencing range for that count from a maximum of 10 years, to a minimum sentence of 15
years and a maximum of life. ECF 27 at 14-15 (plea agreement); ECF 31 (judgment). The
ACCA enhancement was based, in part, on two 1983 convictions for Oregon burglary in
the first degree. ECF 27 at 14-15.
1
"ECF" citations refer to the electronic case filing number in the district court
docket below: United States v. Dubose, No. 6:08-cr-60053-AA (D. Or.).
3
Mr. Dubose was sentenced to 272 months in prison-consisting of 188-month
concurrent terms on Counts 1 and 3, and a mandatory consecutive 84-month term under
§ 924(c) on Count 2. ECF 31. Mr. Dubose did not appeal his conviction or sentence.
On June 24, 2016, Mr. Dubose filed a Motion to Vacate or Correct Sentence under
28 U.S.C. § 2255, invoking the Supreme Court's seminal ruling in Johnson v. United
States, 576 U.S. 591 (2015), which held the residual clause of the Armed Career Criminal
Act's violent felony definition to be void for vagueness. ECF 35. As the district court
recognized, the elimination of the residual clause removed "most of Defendant's prior
convictions from consideration as [ACCA] predicate offenses," ECF 55 at 6, leaving only
two federal bank robbery convictions and two state burglary convictions potentially in play.
Because the ACCA requires three prior convictions, the validity of Mr. Dubose's ACCA
sentence turned on whether Oregon first-degree burglary is still a "violent felony."
Initially, the government conceded, consistent with binding circuit precedent, that
Mr. Dubose's Oregon burglary convictions no longer qualified as violent felonies, that "his
motion with respect to his ACCA sentence should be granted," and that he should receive
a full resentencing. ECF 50 at 1-2; see United States v. Cisneros, 826 F.3d 1190, 1196 (9th
Cir. 2016) (holding Oregon first-degree burglary is not a match for generic burglary and is
not a violent felony _under the ACCA following Johnson). However, before the district
court ruled, the government withdrew its concession and argued that, based on this Court's
intervening decision in United States v. Stitt, 139 S. Ct. 399 (2019), Mr. Dubose's ACCA
sentence remained valid. ECF 51.
4
Mr. Dubose disputed that claim, arguing in reply that, even after Stitt, Oregon
burglary still exceeds the scope of generic burglary:
[T]he Court in Stitt limited its holding to statutes that reach non-permanent
structures designed or adapted for overnight accommodation. 139 S. Ct. at
407. But Oregon's definition of burglary is broader; it reaches nonpermanent structures "adapted for overnight accommodation of persons or
for carrying on business therein." Or. Rev. Stat. § 164.205(1) (emphasis
added). Thus, Cisneros remains binding: Oregon first-degree burglary is still
overbroad and indivisible and cannot qualify as a violent felony.
ECF 54 at 4 (emphases in original).
Mr. Dubose's case remained pending and fully briefed for close to three years with
no action from the district court. On March 1, 2022, without holding oral argument, the
district court issued its opinion and order denying relief. The district court held that,
"[f]ollowing Stitt, ... Oregon burglary is a categorical match for the generic offense and
... Defendant's convictions for Burglary I are predicate convictions under the ACCA."
ECF 55 at 12. The district court did not address the statutory language that extends Oregon
burglary beyond Stitt, to non-permanent structures and vehicles adapted "for carrying on
business therein." ECF 55 at 10-11; see Or. Rev. Stat. § 164.205(1). Further, although no
binding case law existed as to that language, the district court declined to issue a certificate
of appealability.
Mr. Dubose filed a notice of appeal and a motion for issuance of a certificate of
appealability in the circuit court on April 8, 2022. United States v. Dubose, Case No. 2235210 (9th Cir.) (Docket Entry 2). At the time, no precedent had addressed Oregon
5
burglary post-Stitt. After eight months, the Ninth Circuit denied the certificate of
appealability on December 16, 2022, without explanation or analysis. App 'x 1.
Reasons For Granting The Petition
I.
The circuit court's denial of a certificate of appealability warrants summary
reversal.
The standard for issuance of a certificate of appealability is minimal; it requires only
an issue of sufficient weight that reasonable jurists could debate it. Here, the issue
presented to the Ninth Circuit easily met that standard; in fact, it was a meritorious claim.
See United States v. Jones, 951 F.3d 1138, 1141 (9th Cir. 2020) (holding after Stitt that
Colorado burglary's similar definition of building "covers significantly more than the
generic element of 'building or other structure'"). This Court should grant the petition and
summarily reverse the denial of a certificate of appealability so that Mr. Dubose's viable
§ 2255 claim can be heard in the circuit court on the merits with full, adversarial briefing.
A.
The standard for issuance of a certificate of appealability is intentionally
easy to meet, requiring only that a claim be reasonably debatable.
"At the COA stage, the only question is whether the applicant has shown that 'jurists
of reason could disagree with the district court's resolution of his constitutional claims or
that jurists could conclude the issues presented are adequate to deserve encouragement to
proceed further."' Buck v. Davis, 580 U.S. 100, 115 (2017) (quoting Miller-El v. Cockrell,
537 U.S. 322, 336 (2003)). "[A] COA should issue when the prisoner shows, at least, that
jurists of reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right[.]" Slack v. McDaniel, 529 U.S. 473, 484 (2000).
6
"This threshold question should be decided without 'full consideration of the factual
or legal bases adduced in support of the claims."' Buck, 500 U.S. at 115 (quoting Miller-
El, 537 U.S. at 336). In fact, § 2253 forbids first considering the appeal's merits and then
justifying the denial of a certificate of appealability on that basis. Miller-El, 537 U.S. at
336-37. Nor is it required that a prisoner "show[] that the appeal will succeed" or prove
that some jurists would grant relief. Miller-El, 537 U.S. at 337-38. All that is required is
"something more than the absence of frivolity." Id. Further, "a claim can be debatable even
though every jurist of reason might agree, after the COA has been granted and the case has
received full consideration, that petitioner will not prevail." Miller-El, 537 U.S. at 338.
Thus, a COA is warranted unless the district court's ruling is "beyond all debate." Welch
v. United States, 578 U.S. 120, 127 (2016).
B.
Because the district court's ruling was at least subject to reasonable
debate, a certificate of appealability should have issued.
Mr. Dubose's ACCA sentence is invalid following Johnson because Oregon firstdegree burglary is not a categorical match for generic burglary under the ACCA following
Stitt. At a minimum, that issue is not "beyond all debate." Stitt held only that generic
burglary extends to burglaries of non-permanent and mobile structures "customarily used
or adapted for overnight accommodation." 139 S. Ct. at 406-07 (2019). But Oregon firstdegree burglary covers non-permanent and mobile structures "adapted for overnight
accommodation of persons or for carrying on business therein." Or. Rev. Stat.
7
§ 164.205(1) (emphasis added); Or. Rev. Stat. § 164.225. Because the issue warrants full
review, a certificate of appealability should have issued.
1.
In Stitt, this Court held that generic burglary covers vehicles and nonpermanent structures that are adapted or customarily used for
overnight accommodation.
Before Stitt, this Court in Taylor v. United States, concluded that generic burglary
requires "the unlawful or unprivileged entry into, or remaining in, a building or structure,
with intent to commit a crime." 495 U.S. 575, 599 (1990). The "building or structure"
element does not generally include places that are either non-permanent or not intended for
use in one place, like booths, vehicles, boats, or aircrafts. Id. ("A few States' burglary
statutes ... define burglary more broadly ... by including places, such as automobiles and
vending machines, other than buildings."). Considering a Missouri statute that criminalized
breaking and entering "any boat or vessel, or railroad car," the Court concluded that the
law exceeded the scope of generic burglary. Id.
After Taylor, in Mathis v. United States, the Court considered an Iowa burglary
statute that covered "any building, structure, [or] land, water, or air vehicle." 579 U.S.
500, 507 (2016) (emphasis added); see also Iowa Code Ann. § 702.12. As in Taylor, the
Court described the statute as "broader than generic burglary" because it included vehicles,
and thus was not limited to unlawful entry into a "building or structure." Id. Thus, under
Taylor and Mathis, burglary statutes are ordinarily non-generic when they apply to nonpermanent, movable structures like vehicles.
8
The Court next took up the scope of generic burglary in Stitt and clarified that not
all vehicles are excluded from the meaning of "building or structure" for generic burglary.
Rather, generic burglary encompasses entries into some non-permanent structures if they
are "customarily used or adapted for overnight accommodation," like "a mobile home, an
RV, [or] a camping tent[.]" 139 S. Ct. at 406-07. The Court held that this rule was consistent
with the status of most state burglary statutes in 1986 when the ACCA was passed and that
it appropriately recognized the similar risk of violent confrontation in that context as in the
burglary of a traditional building. Id. at 406. The Court reaffirmed the outcomes in Taylor
and Mathis because the state statutes in those cases reached "ordinary" boats, railroad cars,
and vehicles, not just those designed or adapted for overnight use. Id.
2.
Oregon defines "building" for first- and second-degree burglary to
include non-permanent structures "adapted for overnight
accommodation ofpersons or for carrying on business therein. "
Under Oregon law, a person commits second-degree burglary if he "enters or
remains unlawfully in a building with intent to commit a crime therein." Or. Rev. Stat.
§ 164.215(1) (1983). A person commits first-degree burglary ifhe:
violates [the second-degree burglary statute] and the building is a dwelling,
or if in effecting entry or while in a building or in immediate flight therefrom
the person:
(a) Is armed with a burglary tool or theft device ... or a deadly
weapon;
(b) Causes or attempts to cause physical injury to any person; or
(c) Uses or threatens to use a dangerous weapon.
9
Or. Rev. Stat. § 164.225(1) (1983). The law defines building "in addition to its ordinary
meaning" to "include[] any booth, vehicle, boat, aircraft or other structure adapted for
overnight accommodation of persons or for carrying on business therein." Or. Rev. Stat.
§ 164.205( 1) (1983) ( emphasis added). A "dwelling" in Oregon is a "building which
regularly or intermittently is occupied by a person lodging therein at night, whether or not
a person is actually present." Or. Rev. Stat. § 164.205(2) (1983).
First degree burglary is "divisible between burglary of a dwelling on the one hand,
and burglary of a non-dwelling," with one of the enumerated aggravating factors present,
on the other. Diaz-Flores v. Garland, 993 F.3d 766, 771 (9th Cir. 2021). There were no
conviction records submitted in this case indicating that Mr. Dubose was convicted of
burglary of a dwelling as opposed to another kind of building. Thus, it is the broader
definition of "building" at issue, without the narrowing definition of "dwelling."
State courts interpreting the term "building" have held that it includes mobile or
non-permanent structures used for business rather than residential purposes, including:
•
A shipping container used to store recyclables, State v. Fitzgerald, 315
Or. App. 336, 500 P.3d 721 (2021);
•
A detached tractor-trailer located adjacent to a military surplus retailer
used for the storage of inventory and business records, State v. Webb,
262 Or. App. 1, 324 P.3d 522 (2014);
•
A detached tractor-trailer used to leave charitable donations, State v.
Nol/en, 196 Or. App. 141, 100 P.3d 788 (2004); and
•
A fishing vessel, State v. Spencer, 24 Or. App. 385, 545 P.2d 611
(1976).
3.
Oregon first-degree burglary is broader than generic burglary as
defined in Stitt.
Oregon first-degree burglary remains categorically broader than generic burglary
following Stitt because the state offense covers vehicles and other non-permanent
structures that are adapted for "carrying on business therein," not just those that are adapted
for overnight accommodation.
The Ninth Circuit has addressed Oregon burglary in published decisions on multiple
occasions. In United States v. Grisel, the court held that Oregon's second-degree burglary
statute is broader than the generic offense. 488 F .3d 844, 850-51 (9th Cir. 2007) (en bane).
The court reasoned that, under Taylor, generic burglary does not include burglary of
"objects that could be described loosely as structures but that are either not designed for
occupancy or not intended for use in one place"-like a booth, tent, boat, vessel, or railroad
car. Id. at 849. Oregon's statute is broader than the generic offense, the court held, because
it "expressly includes in its definition that which the Supreme Court expressly excluded
from the generic, federal definition"; specifically, "'any booth, vehicle, boat, aircraft or
other structure adapted for overnight accommodation of persons or for carrying on business
therein."' Id. at 850 (quoting Or. Rev. Stat.§ 164.205(1)) (emphasis in Grisel).
Although the court's reasoning in Grisel focused on whether the structure was
intended for use in one place rather than whether it had been adapted for overnight
accommodation, contrary to the later decision in Stitt, the court specifically noted that
Oregon courts had upheld application of the statute to mobile structures used for business
11
purposes rather than for overnight lodging. Id. at 850-51 & n.5 (citing Nol/en, 195 Or. App.
141 (donation trailer), and Spencer, 24 Or. App. 385 (fishing vessel)).
The Ninth Circuit applied Grisel's reasoning to Oregon first-degree burglary in
United States v. Mayer, holding that the offense was overbroad in comparison to generic
burglary for exactly the same reasons: because it "encompasses Oregon's second-degree
burglary statute" and the overbroad definition of "building." 560 F.3d 948, 959 (9th Cir.
2009). In Cisneros, the court deemed Oregon's definition of building to be non-divisible
and concluded that "a conviction under Oregon's first-degree burglary statute could never
be a categorical match to generic burglary." 826 F.3d at 1196.
To be sure, Stitt adjusted the boundaries of generic burglary, but it did so in a way
that left untouched the Ninth Circuit's basic holding in Mayer and Cisneros that firstdegree burglary in Oregon is not a match for generic burglary. Stitt expanded generic
burglary only so far as to encompass a narrow subset of non-permanent structures-those
designed or adapted for overnight accommodation. 139 S. Ct. at 407. By contrast, Oregon's
definition of burglary extends to a whole separate category of non-permanent structuresthose "adapted ... for carrying on business therein,"-which remain excluded from the
scope of generic burglary. Or. Rev. Stat.§ 164.205(1) (emphasis added).
Under the state's broad definition of building, the state courts have found vehicles
and non-permanent structures to be "buildings" even though they would clearly not be
considered either adapted for or customarily used for overnight accommodation, like the
donation trailer in Nol/en. Both before and after Stitt, this broader category of covered
12
locations falls outside the scope of generic burglary. See United States v. Jones, 951 F.3d
1138, 1141 (9th Cir. 2020) (holding Colorado burglary categorically overbroad following
Stitt "because it includes vehicles adapted for the overnight accommodation of people or
animals, as well as structures that are designed to shelter only property") (emphasis
added).
In reaching a contrary conclusion, the district court misunderstood Stitt as having
"cited Oregon's burglary statutes, ... as examples of the generic definition of 'building' at
the time of the ACCA's enactment." ECF 55 at 11 (citing Stitt, 139 S. Ct. at 406). That is
not what Stitt said. While Stitt cited Oregon's definition of "building" as an example of a
law that included the types of non-permanent structures at issue there-those "adapted for
overnight accommodation"-Stitt in no way held that Oregon burglary was limited to those
types of non-permanent structures, as would be required to find a categorial match. That
some buildings covered by Oregon law fall within generic burglary does not mean that they
all do. Stitt also made no comment on the clear text of Oregon's statutes extending burglary
to cover vehicles and non-permanent structures adapted "for carrying on business therein."
At the time Mr. Dubose filed his motion for a certificate of appealability in the Court
of Appeals, no case had yet addressed the status of Oregon burglary post-Stitt. However,
during the eight months that the motion remained pending without action, the Ninth Circuit
decided in a precedential case that Oregon first-degree burglary of a dwelling matches the
definition of generic burglary under the immigration code. Mendoza-Garcia v. Garland,
36 F.4th 989 (9th Cir. 2022). However, Mendoza-Garcia does not put to rest the issue in
13
Mr. Dubose's case for two reasons. First, Mendoza-Garcia only considered a conviction
for first-degree burglary of a dwelling, not the alternative offense of first-degree burglary
of a non-dwelling. Id. at 997. The court relied on the narrowing definition of a "dwelling"
to find that the offense matched generic burglary. 36 F .4th at 997. In the present case, the
conviction records were not submitted. Thus, the question is whether § 164.225 as a whole,
including first-degree burglary of non-dwellings, is a match for generic burglary. 2
Second, the court's description of Oregon law in Mendoza-Garcia is simply wrong.
Although the Mendoza-Garcia opinion correctly understood that Stitt extended generic
burglary only to non-permanent structures that are "designed or adapted/or overnight use,"
the court claimed that Oregon's definition of building "imposes an almost identical
qualification on non-traditional buildings." 36 F.4th at 996-97 (emphasis added). "Almost
identical" is a stretch. Rather, Oregon's qualification for non-permanent structures is
broader on its face than the one addressed in Stitt: Oregon reaches structures adapted for
"overnight use" and those adapted "for carrying on business therein." Or. Rev. Stat.
§ 164.205(1). Regardless of Mendoza-Garcia, a good faith challenge even to squarelyapplicable precedent warrants the issuance of a certificate of appealability.
2
In any event, Mendoza-Garcia's reliance on the definition of "dwelling" to find a
match with Stitt does not hold up. Under Oregon law, a "dwelling" is a building that is
"regularly or intermittently [] occupied by a person lodging therein at night, whether or not
a person is actually present." Or. Rev. Stat. § 164.205(2). This broad definition does not
require that the structure be intended for, customarily used for, or adapted for overnight
accommodation, but only a structure "intermittently" occupied at night. That would include
"a car in which a homeless person occasionally sleeps," a category of structures that this
Court in Stitt expressly declined to reach. 139 S. Ct. at 407.
14
Because Stitt did not modify the holdings of Taylor and Mathis that generic burglary
does not reach "ordinary" vehicles that are not adapted or customarily used for overnight
accommodation, Mendoza-Garcia was wrongly decided. Indeed, the Ninth Circuit has
already recognized that Stitt's holding does not reach so far. See United States v. Jones,
951 F.3d 1138, 1141 (9th Cir. 2020) (holding Colorado burglary categorically overbroad
following Stitt, when not limited to a dwelling, "because it includes vehicles adapted for
the overnight accommodation of people or animals, as well as structures that are designed
to shelter only property") (emphasis added).
Although at least two other circuits have concluded that the "building or structure"
element of generic burglary reaches past the boundaries outlined in Stitt, those courts did
so only after full merits briefing, rather than in summary denial of jurisdiction to even
consider the issue as occurred here, and neither is directly on point for Mr. Dubose's case.
See United States v. Greer, 938 F.3d 766, 769, 776-779 (6th Cir. 2019) (after issuance of
a certificate of appealability, agreeing that a vehicle that is not "even remotely [limited] to
residential uses" falls outside generic burglary, but holding that Ohio aggravated burglary
"substantially corresponds" to generic burglary because of its focus on "actual presence
and use" of the structure); Faulkner v. United States, 926 F.3d 475, 477-78 (8th Cir. 2019)
(after issuance of a certificate of appealability, holding that Indiana burglary is generic
because it reaches "wholly-enclosed fenced-in areas," but not "curtilage, vehicles, or other
movable conveyances") (quoting United States v. Perry, 862 F.3d 620, 622-24 (7th Cir.
2017)).
15
The denial of a certificate of appealability on the substantial issue raised here, which
was not foreclosed but in fact supported by binding circuit precedent, was error.
C.
Summary reversal is warranted because the Ninth Circuit's failure to
issue a certificate of appealability was obviously wrong under this
Court's precedent.
The Court of Appeals' denial of a certificate of appealability was obviously wrong
under this Court's lenient standard. See, e.g., Erickson v. Pardus, 551 U.S. 89 (2007). In
Erickson, this Court granted certiorari and summarily reversed in a case where the Court
of Appeals erroneously departed from the liberal pleading standards articulated in the
Court's precedent. Id. at 94. This Court stopped short of ruling that the underlying
pleadings were sufficient, but just held that the basis for dismissal was clearly wrong:
It may in the final analysis be shown that the District Court was correct to
grant respondents' motion to dismiss. That is not the issue here, however. It
was error for the Court of Appeals to conclude that the allegations in
question, concerning harm caused petitioner by the termination of his
medication, were too conclusory to establish for pleading purposes that
petitioner had suffered "a cognizable independent harm" as a result of his
removal from the hepatitis C treatment program.
551 U.S. at 93.
Similarly here, this Court need not decide whether Mr. Dubose is entitled to habeas
corpus relief. However, he easily met this Court's low and well-articulated bar for receiving
a certificate of appealability. The Court of Appeals decision to shirk jurisdiction was
clearly wrong and easily fixed by remand for the issuance of a certificate of appealability
allowing the appeal to proceed.
16
Alternatively plenary review should be granted to ensure that departures from this
Court's precedent such as occurred here are not repeated.
Conclusion
For the foregoing reasons, the Court should issue a writ of certiorari.
Dated this 16th day of March, 2023 .
17
Case: 22-35210, 12/16/2022, ID: 12612980, DktEntry: 3, Page 1 of 1
UNITED STATES COURT OF APPEALS
FILED
DEC 16 2022
FOR THE NINTH CIRCUIT
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
No.
UNITED STATES OF AMERICA,
22-35210
D.C. Nos.
6:16-cv-01282-AA
6:08-cr-60053-AA-1
District of Oregon,
Eugene
Plaintiff-Appellee,
V.
COLBY TODD DUBOSE,
ORDER
Defendant-Appellant.
Before:
SILVERMAN and BADE, Circuit Judges.
The request for a certificate of appealability (Docket Entry No. 2) is denied
because appellant has not made a "substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253(c)(2); see also Miller-El v. Cockrell, 537
U.S. 322, 327 (2003).
Any pending motions are denied as moot.
DENIED.
Appendix 1
Case 6:08-cr-60053-AA
Document 55
Filed 03/01/22
Page 1 of 14
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
Case No. 6:08-cr-60053-AA
Case No. 6:16-cv-01282-AA
UNITED STATES OF AMERICA,
OPINION & ORDER
Plaintiff,
vs.
COLBY TODD DUBOSE,
Defendant.
AIKEN, District Judge:
This case comes before the Court on Defendant's Motion to Vacate or Correct
Sentence pursuant to 28 U.S.C. § 2255. ECF No. 35. Because the motion and the
record conclusively show that Defendant is not entitled to relief, no evidentiary
hearing is required. For the reasons set forth below, Defendant's motion is DENIED
and the Court declines to issue a certificate of appealability.
Page 1 -OPINION & ORDER
Appendix 2
Case 6:08-cr-60053-AA
Document 55
Filed 03/01/22
Page 2 of 14
BACKGROUND
On June 20, 2008, Defendant was indicted for Armed Bank Robbery in
violation of 18 U.S.C. §§ 2113(a), (d) (Count 1); the Carrying and Use of a Firearm
During a Crime of Violence in violation of 18 U.S.C. § 924(c)(l)(A) (Count 2); and
Felon in Possession of a Firearm in violation of 18 U.S.C. § 921(a)(20) (Count 3). ECF
No. 7. The Indictment alleged that Defendant had three convictions for Theft I in
1983, two convictions for Burglary I in 1983, a conviction for Theft I in 1985, and a
conviction for Escape II in 1986, all in Oregon state court. Defendant also had federal
convictions for Bank Robbery in 1989 and 1996, as well as a federal conviction for
Possession of a Prohibited Object While Incarcerated in 1991.
On May 22, 2009, Defendant pleaded guilty to all three counts of the
Indictment pursuant to a plea agreement with the Government. ECF Nos. 26, 27. In
his plea agreement, Defendant admitted that for purposes of Count 3, he had two
convictions for Burglary I and a conviction for Escape II in Oregon state court and
that in federal court he had two prior convictions for Bank Robbery and a conviction
for Possession of a Prohibited Object While Incarcerated. ECF No. 27. On September
2, 2009, this Court sentenced Defendant to 188 months on Counts 1 and 3 to run
concurrently and 84 months on Count 2 to run consecutive to the sentences for Counts
1 and 3 for a total sentence of 272 months followed by five years of supervised release.
ECF Nos. 31, 33.
Page 2 -OPINION & ORDER
Appendix 3
Case 6:08-cr-60053-AA
Document 55
Filed 03/01/22
Page 3 of 14
LEGAL STANDARD
Under 28 U.S.C. § 2255, a federal prisoner in custody under sentence may
move the court that imposed the sentence to vacate, set aside, or correct the sentence
on the ground that:
[T]he sentence was imposed in violation of the Constitution or laws of
the United States, or that the court was without jurisdiction to impose
such sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack ...
28 U.S.C. § 2255(a).
To warrant relief, a petitioner must demonstrate that the error of
constitutional magnitude had a substantial and injurious effect or influence on the
guilty plea or the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see
also United States v. Montalvo, 331 F.3d 1052, 1058 (9th Cir. 2003) ("We hold now
that Brecht's harmless error standard applies to habeas cases under section 2255,
just as it does to those under section 2254.").
Under§ 2255, "a district court must grant a hearing to determine the validity
of a petition brought under that section, '[u]nless the motions and the files and
records of the case conclusively show that the prisoner is entitled to no relief."' United
States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (alteration and emphasis in
original) (quoting 28 U.S.C. § 2255). In determining whether a§ 2255 motion requires
a hearing, "[t]he standard essentially is whether the movant has made specific factual
allegations that, if true, state a claim on which relief could be granted." United States
v. Withers, 638 F.3d 1055, 1062 (9th Cir. 2011) (alteration in original, internal
quotation marks and citation omitted).
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A district court may dismiss a § 2255 motion based on a facial review of the
record "only if the allegations in the motion, when viewed against the record, do not
give rise to a claim for relief or are 'palpably incredible or patently frivolous."'
Withers, 638 F.3d at 1062-63 (quoting United States v. Schaflander, 743 F.2d 714,
717 (9th Cir. 1984)); see United States v. Hearst , 638 F.2d 1190, 1194 (9th Cir. 1980).
Conclusory statements in a § 2255 motion are insufficient to require a hearing.
Hearst, 638 F.2d at 1194.
DISCUSSION
I.
Armed Career Criminal Act
Federal law generally prohibits felons from possessing firearms . 18 U.S.C. §
922(g)(l).
Under ordinary circumstances, ten years is the maximum term of
imprisonment for a violation of§ 922(g). However, if a felon with three previous
convictions for a "violent felony or a serious drug offense" violates § 922(g), the Armed
Career Criminal Act ("ACCA'') mandates a sentence of at least 15 years. 18 U .S.C. §
924(e)(l).
At the time of Defendant's sentencing, the ACCA defined a "violent felony" as
a felony that:
(i)
has as an element the use, attempted use, or threatened use
of physical force against the person of another; or
(ii)
is burglary, arson, or extortion, involves the use of explosives,
or otherwise involves conduct that presents a serious potential
risk of physical injury to another; or
Page 4 -OPINION & ORDER
Appendix 5
Case 6:08-cr-60053-AA
(iii)
Document 55
Filed 03/01/22
Page 5 of 14
involves conduct that presents a serious potential risk of
physical injury to another.
18 U.S.C. § 924(e)(2)(A).
Clause (i) of this definition is known as the "force clause," while clause (ii) are
the "enumerated offenses," and clause (iii) is known as the "residual clause." In June
2015,
the
Supreme
Court struck down the ACCA "residual clause"
as
unconstitutionally vague. Johnson v. United States, 576 U.S. 591, 606 (2015). The
Supreme Court subsequently held that Johnson had announced a substantive rule
that had retroactive effect in cases on collateral review. Welch v. United States, 578
U.S. 120, 135 (2016). Following Johnson, a conviction will only qualify as a predicate
under the ACCA if it falls within the force clause or the enumerated offenses.
Courts use the "categorical approach" to determine whether a prior conviction
is a predicate offense under the ACCA. United States v. Parnell, 818 F.3d 974, 978
(9th Cir. 2016) . Using the categorical approach, courts "compare the elements of the
statute forming the basis of the defendant's conviction with the elements of the
'generic' crime-i.e., the offense as commonly understood." Descamps v. United
States, 570 U.S. 254, 257 (2013). "The prior conviction qualifies as an ACCA predicate
only if the statute's elements are the same as, or narrower than, those of the generic
offense." Id. Under the categorical approach, courts do not look beyond the elements
of the statute of conviction and must presume that the conviction rests upon the least
of the acts criminalized. Ramirez v. Lynch, 810 F.3d 1127, 1131 (9th Cir. 2016). If,
after conducting this analysis, the court concludes that the state statute of conviction
Page 5 -OPINION & ORDER
Appendix 6
Case 6:08-cr-60053-AA
Document 55
Filed 03/01/22
Page 6 of 14
criminalizes more conduct than the generic offense, then it is overbroad and the
conviction will not qualify as a predicate offense. Id.
The Supreme Court has, however, recognized that some statutes set out one or
more elements of the offense in the alternative, essentially forming "several different
crimes." Descamps, 570 U.S. at 257, 261-62. "If at least one, but not all of those
crimes matches the generic version, a court needs a way to find out which the
defendant was convicted of." Id. at 264. In cases involving such "divisible" statutes,
courts are permitted to apply the "modified categorical approach." Id. at 258. Under
the modified categorical approach, courts may look beyond the elements of the statute
to documents like charging instruments, jury instructions, plea agreements,
transcripts of plea hearings, and judgments to determine whether the defendant was
convicted of a set of elements that fall within the generic definition. Mathis v. United
States, 579U.S.500, 136 S. Ct. 2243, 2249 (2016); Ramirez, 810 F.3d at 1131.
In this case, the elimination of the residual clause removes most of Defendant's
prior convictions from consideration as predicate offenses, leaving only Defendant's
state court convictions for Burglary I in violation of ORS 164.225, and Defendant's
federal convictions for Armed Bank Robbery in violation of 18 U.S.C. §§ 2113(a), (d).
The Court will address each in turn.
A. Armed Bank Robbery
As previously noted, at the time of sentencing Defendant had two prior
convictions for Armed Bank Robbery in 1989 and in 1996, both in the District of
Page 6 -OPINION & ORDER
Appendix 7
Case 6:08-cr-60053-AA
Document 55
Filed 03/01/22
Page 7 of 14
Oregon. Def. Mot. Ex. A ("PSR") at 13-14. ECF No. 46. Defendant contends that his
prior bank robbery convictions do not qualify as crimes of violence under the ACCA.
First, Defendant argues that his prior federal bank robberies do not qualify as
crimes of violence because bank robbery by force or intimidation does not require use
or threatened use of violent force. A "crime of violence" is "an offense [that] must
have as an element the use, attempted use, or threatened use of violent physical
force-'that is, force capable of causing physical pain or injury to another person."'
United States v. Gutierrez, 876 F.3d 1254, 1256 (9th Cir. 2017) (quoting Johnson v.
United States, 559 U.S. 133, 140 (2010)). In Gutierrez, the Ninth Circuit held that:
'intimidation' as used in the federal bank robbery statute requires that
a person take property 'in such a way that would put an ordinary,
reasonable person in fear of bodily harm,' which necessarily entails the
'threatened use of physical force.' As a result, in our court, too, federal
bank robbery constitutes a crime of violence.
Id. at 1257 (quoting United States v. Selfa, 918 F.2d 749, 751 (9th Cir. 1990)).
In United States v. Goodin, Case No. 6:11-cr-60146-AA, 6:12-cr-00021-AA,
6:17-cv-00004-AA, 6:17-cv-00002-AA, 2020 WL 1813248, at *2-3 (D. Or. April 9,
2020), this Court relied on the Ninth Circuit's decision in Gutierrez to conclude that
the defendant's prior convictions for bank robbery qualified as crimes of violence
under the force clause of the ACCA. The Court finds no cause to reach a contrary
conclusion in the present case.
In Goodin, the Court also considered an argument concerning whether the
defendant's prior convictions for bank robbery had the required mens rea to qualify
as a threatened use of physical force. Goodin, 2020 WL 1813248, at *3. The Ninth
Page 7 -OPINION & ORDER
Appendix 8
Case 6:08-cr-60053-AA
Document 55
Filed 03/01/22
Page 8 of 14
Circuit has held that "a defendant may be convicted of bank robbery only if the
government proves that he at lease 'possessed knowledge with respect to the ...
taking of property of another by force and violence or intimidation." United States v.
Watson, 881 F.3d 782, 785 (9th Cir. 2018) (quoting Carter v. United States, 530 U.S.
255, 268 (2000)). As a result, the Ninth Circuit held that bank robbery does have the
necessary mens rea because "the offense must at least involve the knowing use of
intimidation, which necessarily entails the knowing use, attempted use, or
threatened use of violent physical force." Id. In Goodin, this Court concluded that,
based on Watson, the "defendant's prior bank robbery convictions did have the
required mens rea of a threatened use of physical force," and so "the ACCA sentence
enhancement was appropriate." Goodin, 2020 WL 1813248, at *3. The Court reaches
the same conclusion in the present case.
Accordingly, the Court concludes that Defendant's prior convictions for bank
robbery qualified as "violent felonies" under the force clause of the ACCA and were,
therefore, predicate convictions.
B. Burglary I
As previously discussed, Defendant has prior Oregon state court convictions
for Burglary I in violation of ORS 164.225. Following the Supreme Court's decision
in Johnson, both the Ninth Circuit and courts within this District have held that
Oregon Burglary I is not a "violent felony" under the ACCA.
United States v.
Cisneros, 826 F.3d 1190 (9th Cir. 2016); United States v. Mayer, 162 F. Supp.3d 1080
(D. Or. 2016).
Page 8 -OPINION & ORDER
Appendix 9
Case 6:08-cr-60053-AA
Document 55
Filed 03/01/22
Page 9 of 14
The Government initially conceded that Defendant's burglary convictions were
no longer ACCA predicate offenses, but subsequently withdrew that concession. ECF
Nos. 50, 51. The Government asserts that the Supreme Court's decision in United
States v. Stitt, _U.S._, 139 S. Ct. 399 (2018) overrules the Ninth Circuit's prior
decisions in United States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en bane) and United
States v. Cisneros, 826 F .3d 1190 (9th Cir. 2016) .
As previously discussed, "burglary" is one of the enumerated offenses under
the ACCA. 18 U.S.C. § 924(e)(2)(B)(ii). In order to determine if Oregon Burglary I
qualifies as a predicate offense, the Court must therefore compare it to the generic
crime of burglary under the categorical approach.
Under Oregon law, a person
commits Burglary I if he "enters or remains unlawfully in a building with intent to
commit a crime therein," ORS 164.215, "and the building is a dwelling." ORS 164.225.
Oregon defines ''building" to include "in addition to its ordinary meaning ... any
booth, vehicle, boat, aircraft or other structure adapted for overnight accommodation
of persons or for carrying on business therein." ORS 164.205(1). Oregon defines
dwelling'' as "a building which regularly or intermittently is occupied by a person
lodging therein at night, whether or nor a person is actually present."
ORS
164.205(2).
The Ninth Circuit has previously determined that Oregon Burglary I is
overbroad in relation to the generic offense because "the 'building or structure'
element of generic burglary does not include booths, vehicles, boats, or aircrafts."
Cisneros, 826 F.3d at 1194 (citing Taylor v. United States, 495 U.S. 575, 599 (1990));
Page 9-OPINION & ORDER
Appendix 10
Case 6:08-cr-60053-AA
Document 55
Filed 03/01/22
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Grisel, 488 F.3d at 850-51 (holding that Oregon burglary is overbroad because it
embraces a definition of "building'' that includes booths, vehicles, boats, and aircraft
in addition to the ordinary meaning of the term). The Ninth Circuit further concluded
that Oregon Burglary I was indivisible because "building" was a single element that
did not encompass separate alternative crimes. Cisneros, 826 F.3d at 1196.
In United States v. Stitt, the Supreme Court considered whether the ACCA's
use of the term "'burglary' includes burglary of a structure or vehicle that has been
adapted or is customarily used for overnight accommodation." Stitt, 139 S. Ct. at 40304. In weighing the generic definition of burglary, the Supreme Court noted that
"Congress intended the definition of 'burglary' to reflect the generic sense in which
the term was used in the criminal codes of most States at the time the [ACCA] was
passed." Id. at 406 (internal quotation marks and citations omitted, alterations
normalized). "In 1986, a majority of state burglary statutes covered vehicles adapted
or customarily used for lodging-either explicitly or by defining 'building' or
'structure' to include those vehicles."
Id.
The Supreme Court cited directly to
Oregon's burglary statutes, ORS 164.205, 164.215, 164.225, and their definition of
"building," which includes booths, vehicles, boats, aircraft, or any other structure
"adapted for overnight accommodation of persons," as an example of that generic
understanding. Id. In doing so, the Supreme Court expressly overruled the Ninth
Circuit's contrary holding in Grisel. Id. at 404-05.
The Supreme Court also noted that Congress "viewed burglary as an
inherently dangerous crime because burglary creates the possibility of a violent
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Case 6:08-cr-60053-AA
Document 55
Filed 03/01/22
Page 11 of 14
confrontation between the offender and an occupant, caretaker, or some other person
who comes to investigate." Stitt, 139 S. Ct. at 406 (internal quotation marks and
citation omitted). The Supreme Court viewed the inclusion of vehicles within the
generic definition of building as consonant with that statutory purpose because "[a]n
offender who breaks into a mobile home, an RV, a camping tent, a vehicle, or another
structure that is adapted for or customarily used for lodging runes a similar or greater
risk of violent confrontation." Id. Accordingly, the Court held that "coverage of
vehicles designed or adapted for overnight use" would not take a state statute
"outside the generic burglary definition." Id. at 407.
In Stitt, the Supreme Court expressly overruled the Ninth Circuit's decision in
Grisel, which held that Oregon's burglary statutes were overbroad in comparison to
the generic offense specifically because Oregon's definition of building encompassed
such vehicles. Stitt, 139 S. Ct. at 404-04; Grisel, 488 F.3d at 850-51. The Court also
cited Oregon's burglary statutes, which included vehicles adapted for overnight
accommodation of persons, as examples of the generic definition of ''building" at the
time of the ACCA's enactment. Stitt, 139 S. Ct. at 406. Although not expressly
discussed in Stitt, the Ninth Circuit's decision in Cisneros reached the same
conclusion concerning the overbreadth of Oregon's definition of ''building'' by
following the reasoning set forth in Grisel.
Cisneros, 826 F.3d at 1193-94. The
Supreme Court's holding in Stitt would therefore apply with equal force to the Ninth
Circuit's conclusion in Cisneros concerning whether Oregon's burglary statute is
overbroad. See Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir. 2003) (en bane)
Page 11-OPINION & ORDER
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(holding that district courts are not bound by a prior circuit court ruling that is clearly
irreconcilable with intervening higher authority).
Following Stitt, the Court concludes that Oregon burglary is a categorical
match for the generic offense and that Defendant's convictions for Burglary I are
predicate convictions under the ACCA.
Because Defendant has at least three ACCA-predicate convictions, including
convictions for Armed Bank Robbery and Burglary I, the Court concludes that
Defendant's
sentence
properly
included
the
ACCA
mandatory
mm1mum.
Defendant's motion to vacate his sentence on that basis is DENIED.
II.
Career Offender Under the Guidelines
In addition to challenging his mandatory minimum sentence under the ACCA,
Defendant asserts that his prior convictions did not qualify as "crimes of violence"
under the federal Sentencing Guidelines. In essence, Defendant argues that the
reasoning of Johnson applies with equal force to the similar the residual clause of the
former U.S.S.G. § 4Bl.2(a).
Normally, a§ 2255 motion must be filed within a year of the date the conviction
became final. 28 U.S.C. § 2255(£)(1). A§ 2255 motion may also be filed within one
year of "the date on which the right asserted was initially recognized by the Supreme
Court, if that right has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review." 28 U.S.C. § 2255(£)(3). In this
case, the Supreme Court has held that, unlike the mandatory minimum sentences in
the ACCA, "the advisory Guidelines are not subject to vagueness challenges under
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Appendix 13
Case 6:08-cr-60053-AA
Document 55
Filed 03/01/22
Page 13 of 14
the Due Process Clause." Beckles v. United States, _U.S._, 137 S. Ct. 886, 890
(9th Cir. 2017).
Defendant's challenge to his designation as a career offender
therefore fails.
III.
18 U.S.C. § 924(c)
As previously noted, Defendant was convicted of violation of 18 U.S.C. § 924(c).
"That statute requires the imposition of an additional consecutive sentence on a
defendant convicted of a "crime of violence" while using or carrying a firearm." United
States v. Blackstone, 903 F.3d 1020, 1028 (9th Cir. 2018). "Crime of violence" is
defined by§ 924(c) as a felony that:
(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).
The second formulation is, like the similar provision in the ACCA, known as
the "residual clause." Blackstone, 903 F.3d at 1028.
Defendant argues that his conviction for using a firearm during a crime of
violence under 18 U.S.C. § 924(c) should be vacated because, following Johnson,
armed bank robbery is not a crime of violence. The Court notes, however, that the
Supreme Court has not found the residual clause of§ 924(c) to be void for vagueness,
nor has it made such a ruling retroactively applicable on collateral review and so a
challenge on that basis would be time-barred. See Blackstone, 903 F.3d at 1028 (so
holding).
Even if the Court were to reach the merits of Defendant's argument,
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Filed 03/01/22
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however, the motion would still fail because the Ninth Circuit has held that bank
robbery is a crime of violence under the "force clause," of§ 924(c)(3)(A). Watson, 881
F.3d at 786.
IV.
Certificate of Appealability
A final order in a § 2255 proceeding may not be appealed unless a judge issues
a certificate of appealability. 28 U.S.C. § 2253(c)(l)(B). A certificate of appealability
may not issue unless "the applicant has made a substantial showing of the denial of
a constitutional right." 28 U.S.C. § 2253(c)(2). In Slack v. McDaniel, 529 U.S. 4 73
(2000), the Supreme Court explained that a certificate of appealability under §
2253(c) is warranted when a habeas prisoner makes "a demonstration that ...
includes a showing that reasonable jurists could debate whether .. . the petition
should have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further."
quotation marks and citation omitted).
Id. at 483-84 (internal
In this case, the Court concludes that
Defendant has failed to make the required showing and so declines to issue a
certificate of appealability.
CONCLUSION
For the reasons set forth above, Defendant's Motion under 28 U.S.C. § 2255,
ECF No. 35, is DENIED. The Court declines to issue a certificate of appealability.
It is so ORDERED and DATED this __1.s_t_ day of March 2022.
/s/Ann Aiken
Ann Aiken
United States District Judge
Page 14 -OPINION & ORDER
Appendix 15
18 U.S.C. § 924(e) (2008)
§ 924. Penalties
(e)(1) In the case of a person who violates section 922(g) of this title and has three previous
convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious
drug offense, or both, committed on occasions different from one another, such person shall be
fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other
provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to,
such person with respect to the conviction under section 922(g).
(2) As used in this subsection—
(A) the term “serious drug offense” means—
(i) an offense under the Controlled Substances Act (21 U.S.C. 801 et seq.), the
Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705
of title 46, for which a maximum term of imprisonment of ten years or more is
prescribed by law; or
(ii) an offense under State law, involving manufacturing, distributing, or possessing
with intent to manufacture or distribute, a controlled substance (as defined in section
102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of
imprisonment of ten years or more is prescribed by law;
(B) the term “violent felony” means any crime punishable by imprisonment for a term
exceeding one year, or any act of juvenile delinquency involving the use or carrying of a
firearm, knife, or destructive device that would be punishable by imprisonment for such
term if committed by an adult, that—
(i) has as an element the use, attempted use, or threatened use of physical force against
the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury to another; and
(C) the term “conviction” includes a finding that a person has committed an act of juvenile
delinquency involving a violent felony.
Appendix 16
28 U.S.C. § 2253 (2023)
§ 2253. Appeal
(a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the
final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the
proceeding is held.
(b) There shall be no right of appeal from a final order in a proceeding to test the validity of a
warrant to remove to another district or place for commitment or trial a person charged with a
criminal offense against the United States, or to test the validity of such person's detention pending
removal proceedings.
(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be
taken to the court of appeals from-(A) the final order in a habeas corpus proceeding in which the detention complained of
arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1) only if the applicant has
made a substantial showing of the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate which specific issue
or issues satisfy the showing required by paragraph (2).
Appendix 17
28 U.S.C. § 2255 (2023)
§ 2255. Federal custody; remedies on motion attacking sentence
(a) A prisoner in custody under sentence of a court established by Act of Congress claiming the
right to be released upon the ground that the sentence was imposed in violation of the Constitution
or laws of the United States, or that the court was without jurisdiction to impose such sentence, or
that the sentence was in excess of the maximum authorized by law, or is otherwise subject to
collateral attack, may move the court which imposed the sentence to vacate, set aside or correct
the sentence.
(b) Unless the motion and the files and records of the case conclusively show that the prisoner is
entitled to no relief, the court shall cause notice thereof to be served upon the United States
attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and
conclusions of law with respect thereto. If the court finds that the judgment was rendered without
jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral
attack, or that there has been such a denial or infringement of the constitutional rights of the
prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the
judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct
the sentence as may appear appropriate.
(c) A court may entertain and determine such motion without requiring the production of the
prisoner at the hearing.
(d) An appeal may be taken to the court of appeals from the order entered on the motion as from
a final judgment on application for a writ of habeas corpus.
(e) An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply
for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant
has failed to apply for relief, by motion, to the court which sentenced him, or that such court has
denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to
test the legality of his detention.
(f) A 1-year period of limitation shall apply to a motion under this section. The limitation period
shall run from the latest of-(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action
in violation of the Constitution or laws of the United States is removed, if the movant was
prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if
that right has been newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been
discovered through the exercise of due diligence.
Appendix 18
(g) Except as provided in section 408 of the Controlled Substances Act, in all proceedings brought
under this section, and any subsequent proceedings on review, the court may appoint counsel,
except as provided by a rule promulgated by the Supreme Court pursuant to statutory authority.
Appointment of counsel under this section shall be governed by section 3006A of title 18.
(h) A second or successive motion must be certified as provided in section 2244 by a panel of the
appropriate court of appeals to contain-(1) newly discovered evidence that, if proven and viewed in light of the evidence as a
whole, would be sufficient to establish by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable.
Appendix 19
Or. Rev. Stat. § 164.225 (1983)
164.225. Burglary in the first degree
(1) A person commits the crime of burglary in the first degree if the person violates ORS
164.215 and the building is a dwelling, or if in effecting entry or while in a building or in
immediate flight therefrom the person:
(a) Is armed with a burglar’s tool as defined in ORS 164.235 or a deadly weapon; or
(b) Causes or attempts to cause physical injury to any person; or
(c) Uses or threatens to use a dangerous weapon.
(2) Burglary in the first degree is a Class A felony.
Or. Rev. Stat. § 164.205(1) & (2) (1983)
164.205. Definitions
(1) “Building,” in addition to its ordinary meaning, includes any booth, vehicle, boat, aircraft or
other structure adapted for overnight accommodation of persons or for carrying on business
therein. Where a building consists of separate units, including, but not limited to, separate
apartments, offices or rented rooms, each unit is, in addition to being a part of such building, a
separate building.
(2) “Dwelling” means a building which regularly or intermittently is occupied by a person
lodging therein at night, whether or not a person is actually present.”
Appendix 20
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.