Opinion
CASE NO. 2:16-CV-476 CRIM. NO. 213-CR-00258
02-02-2017
ROYAL S. SCHULTZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
Magistrate Judge Deavers OPINION AND ORDER
On November 22, 2016, the Magistrate Judge issued an Order and Report and Recommendation recommending that Respondent's Motion to Dismiss (ECF No. 81) be granted and that the Motion to Vacate under 28 U .S.C. § 2255 (ECF No. 80) be dismissed. (ECF No. 85). Petitioner has filed an Objection to the Magistrate Judge's Order and Report and Recommendation. (ECF No. 89). Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the reasons that follow, Petitioner's Objection (ECF No. 89) is OVERRULED. The Order and Report and Recommendation (ECF No. 85) is ADOPTED and AFFIRMED. Respondent's Motion to Dismiss (ECF No. 81) is GRANTED. The Motion to Vacate under 28 U .S.C. § 2255 (ECF No. 80) is DISMISSED.
Petitioner's request for a certificate of appealability is GRANTED.
Petitioner challenges his convictions pursuant to his guilty plea on conspiracy to commit robbery under the Hobbs Act, in violation of 18 U.S.C. § 1951(a), and carrying a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(i). Petitioner asserts that his conviction on carrying a firearm in furtherance of a crime of violence should be dismissed in view of the Supreme Court's decision in Johnson v. United States, -- U.S. --, 135 S.Ct. 2551 (2015)(declaring the "residual clause" of 18 U.S.C. § 924(e)(2)(B)(ii) of the Armed Career Criminal Act to be unconstitutionally vague), because the predicate offense for this conviction, i.e., his conviction on conspiracy to commit a Hobbs Act robbery, does not constitute a "crime of violence." The Magistrate Judge recommended dismissal of this claim on the merits.
Referring to United States v. Edmundson, 153 F. Supp. 3d 857, 864 (D. Md. Dec. 30, 2015) (holding that a Hobbs Act conspiracy does not constitute a crime of violence under the "force clause" of 924(c), and that the residual clause of § 924(c)(3)(B) is unconstitutionally vague), and Welch v. United States, -- U.S. --, --, 136 S.Ct. 1257, 1261 (2016) (holding that Johnson applies retroactively to cases on collateral review), Petitioner maintains that his § 924(c) conviction is constitutionally invalid. This Court does not agree.
As noted by the United States District Court for the Southern District of Florida in Mobley v. United States, Nos. 16-cv-61388-BLOOM; 16-cr-60005-BLOOM, 2016 WL 7188296, at *5 (S.D. Fla. Dec. 12, 2016), the Courts of Appeals for the Second, Sixth, and Eighth Circuits have all rejected arguments "nearly identical" to those raised by Petitioner herein. Id. (citing United States v. Hill, 832 F.3d 135 (2d Cir. 2016); United States v. Taylor, 814 F.3d 340 (6 Cir. 2016); United States v. Prickett, 839 F.3d 697 (8 Cir. 2016)). "The majority of district courts to consider this issue have also distinguished § 924(3)(B) from ACCA's residual clause." United States v. Hernandez, No. 2017 WL 111730, at 11, n.13 (D. Me. Jan. 11, 2017) (citing United States v. Moreno-Aguilar, No. 13-496, 2016 WL 4089563, at *6-9 (D. Md. Aug. 2, 2016); Kundo v. United States, No. 16-436, 2016 WL 3079755, at *2-3 (D. Utah, May 31, 2016); United States v. Green, No. 15-526, 2016 WL 277982, at *3-5 (D. Md. Jan. 22, 2016); United States v. Tsarnaev, 157 F. Supp. 3d 57, 71-74 (D. Mass. 2016); United States v. Checora, 155 F. Supp. 3d 1192, 1201-03 (D. Utah 2015); McDaniels, 147 F. Supp. 3d at 436-37; United States v. Lusenhop, No. 14-122, 2015 WL 5016514, at *3 (S.D. Ohio Aug. 25, 2015)). Further, this Court is bound by the decision of the United States Court of Appeals for the Sixth Circuit in Taylor, which has rejected Petitioner's argument.
Petitioner requests a certificate of appealability. "In contrast to an ordinary civil litigant, a state prisoner who seeks a writ of habeas corpus in federal court holds no automatic right to appeal from an adverse decision by a district court." Jordan v. Fisher, -- U.S. --. --, 135 S.Ct. 2647, 2650 (2015); 28 U.S.C. § 2253(c)(1) (requiring a habeas petitioner to obtain a certificate of appealability in order to appeal). The petitioner must establish the substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). This standard is a codification of Barefoot v. Estelle, 463 U.S. 880 (1983). Slack v. McDaniel, 529 U.S. 473, 484 (2000) (recognizing codification of Barefoot in 28 U.S.C. § 2253(c)(2)). To make a substantial showing of the denial of a constitutional right, a petitioner must show "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed further.'" Slack, 529 U.S. at 484 (quoting Barefoot, 463 U.S., at 893 n.4).
The Court concludes that reasonable jurists could debate whether Petitioner has raised a meritorious claim for relief, as other federal district courts to address the issue have reached a different conclusion. See, e.g., Edmundson, 153 F.Supp.3d at 857. Therefore, the Court GRANTS Petitioner's request for a certificate of appealability, and certifies the following issue for appeal:
Is the residual clause of 18 U.S.C. § 924(c) unconstitutional in view of Johnson Johnson v. United States, -- U.S. --, 135 S.Ct. 2551 (2015), thus requiring Petitioner's conviction on carrying a
firearm in furtherance of a crime of violence i.e., conspiracy to commit a Hobbs Act robbery, to be vacated?
Petitioner's Objection (ECF No. 89) is OVERRULED. The Order and Report and Recommendation (ECF No. 85) is ADOPTED and AFFIRMED. Respondent's Motion to Dismiss (ECF No. 81) is GRANTED. The Motion to Vacate under 28 U .S.C. § 2255 (ECF No. 80) is DISMISSED.
Petitioner's request for a certificate of appealability is GRANTED.
IT IS SO ORDERED.
s/ George C . Smith
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT