Application — Colby Todd Dubose, Applicant v. United States

No. _ _ _ __ __

IN THE SUPREME COURT

OF THE UNITED STATES

COLBY TODD DUBOSE,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

APPLICATION TO CIRCUIT JUSTICE ELENA KAGAN TO ISSUE CERTIFICATE

OF APPEALABILITY PURSUANT TO

28 U.S.C. § 2253 AND SUPREME COURT RULE 22

Elizabeth G. Daily

Assistant Federal Public Defender

101 SW Main Street, Suite 1700

Portland, Oregon 97204

(503) 326-2123

Attorney for Petitioner

To THE HONORABLE ELENA KAGAN, ASSOCIATE JUSTICE OF THE UNITED STATES

SUPREME COURT AND CIRCUIT JUSTICE FOR THE NINTH CIRCUIT:

Pursuant to Supreme Court Rule 22 and the authority conferred under 28 U.S.C.

§ 225 3(c)( 1)(B ), applicant Colby Todd Dubose respectfully applies to Justice Elena Kagan,

Circuit Justice for the Ninth Circuit, for the issuance of a certificate of appealability on the

following question:

Whether Oregon first-degree burglary is categorically broader than generic

burglary because the state offense covers nonpermanent and mobile

structures "adapted ... for carrying on business therein," Or. Rev. Stat.

§ 164.205(1), which are not covered by generic burglary as defined by

United States v. Stitt, 139 S. Ct. 399 (2019).

Under 2253(c)(l)(B), an appeal can be taken to the Court of Appeals from the final

order in a 28 U.S.C. § 2255 proceeding only if "a circuit justice or judge" first issues a

certificate of appealability. (Emphasis added). Thus, this Court has concurrent authority

with district judges and circuit judges to grant a certificate of appealability, and indeed a

legal obligation to do so based on the requisite showing. Specifically, "[a]t 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)).

In Welch v. United States, this Court described the certificate of appealability standard as

being met unless the district court's ruling is "beyond all debate." 578 U.S. 120, 127 (2016).

1

Here, the standard for a certificate of appealability is easily met, as more fully set

out in Mr. Dubose's petition for writ of certiorari filed on today's date. The critical question

is whether Mr. Dubose should have been allowed to appeal the denial of his 28 U.S.C.

§ 2255 motion challenging his sentence under the Armed Career Criminal Act (ACCA)

following the invalidation ofthe residual clause in Johnson v. United States, 576 U.S. 591

(2015). The district court had ruled that, in light of United States v. Stitt, 139 S. Ct. 399

(2019), and contrary to existing circuit precedent, Mr. Dubose's prior convictions for

Oregon burglary in the first degree under Oregon Revised Statute § 164.225(1) matched

the definition of generic burglary and thus continued to support his ACCA sentence. At a

minimum, that ruling was subject to reasonable debate. In reality, the decision was flat

wrong.

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.

2

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). The conviction records

here were not submitted. Thus, the focus is on the statute as a whole.

State courts interpreting the term "building" have held that it includes mobi]e 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).

Before Stitt, the lower courts had held that Oregon burglary in either the first or

second degree was not a match for generic burglary as defined in Taylor v. United States,

495 U.S. 575, 599 (1990), because the state definition of building "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

3

overnight accommodation of persons or for carrying on business therein."' United States

v. Grisel, 488 F.3d 844, 850-51 (9th Cir. 2007) (en bane) (emphasis in Grisel) (holding

second-degree burglary to be categorically overbroad based on the definition of

"building"); see also United States v. Cisneros, 826 F.3d 1190, 1196 (9th Cir. 2016)

(holding first-degree burglary to be categorically overbroad and indivisible for the same

reasons).

In United States v. Stitt, 139 S. Ct. 399 (2019), however, this Court clarified that

generic burglary extends to burglaries of some non-permanent and mobile structures;

specifically, those that are "customarily used or adapted for overnight accommodation,"

like "a mobile home, an RV, [or] a camping tent[.]" 139 S. Ct. at 406-07. But Oregon firstdegree burglary covers non-permanent ~nd mobile structures "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. Thus, although Stitt adjusted the

boundaries of generic burglary, it 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." 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 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

4

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).

At a minimum, Stitt' s impact on Oregon burglary is a matter of sufficient weight

that reasonable jurists could debate it. Accordingly, a certificate of appealability should be

issued. Although Mr. Dubose has filed a petition for writ of certiorari, the direct issuance

of a certificate of appealability is the most straightforward path to relief; it neither requires

this Court's full assessments of the merits of the case nor the reversal of the lower court.

Justice Kagan, as the Circuit Justice for the Ninth Circuit, has concurrent jurisdiction under

§ 2253(c)(l)(B) to issue a certificate of appealability based on the applicant's required

showing, which has been made here. This Court should assess the application on the merits

and grant it as required by law.

For the foregoing reasons, Applicant respectfully requests issuance of a certificate

of appealability on the question outlined above.

Dated this 16th day of March, 2023.

5

APPENDIX A

Case: 22-35210, 12/16/2022, ID: 12612980, DktEntry: 3, Page 1 of 1

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

DEC 16 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

V.

No.

22-35210

D.C. Nos.

6:16-cv-01282-AA

6:08-cr-60053-AA-1

District of Oregon,

Eugene

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.

APPENDIXB

Case 6:08-cr-60053-AA

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

UNITED STATES OF AMERICA,

Case No. 6:08-cr-60053-AA

Case No. 6:16-cv-01282-AA

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.

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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.

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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

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(iii)

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involves conduct that presents a ser10us 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

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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 pr10r

convictions for Armed Bank Robbery in 1989 and in 1996, both in the District of

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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

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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).

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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));

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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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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)

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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

m1mmum.

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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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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Case 6:08-cr-60053-AA

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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 ...1s.t.. day of March 2022.

ls/Ann Aiken

Ann Aiken

United States District Judge

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