Opinion
Criminal Action No. 12-00090-KD-C
02-24-2017
ZERRICK CHARLES ROBINSON, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER
This matter is before the Court on Petitioner's motion to stay and hold Petitioner's motion pursuant to 28 U.S.C. § 2255 in abeyance pending the United States Supreme Court's decision in Lynch v. Dimaya, 137 S. Ct. 31 (2016), the United States' objection, and Petitioner's reply. (Docs. 155, 157, and 158). Upon consideration, and for the reasons discussed herein, the motion to stay and hold in abeyance (Doc. 155) is GRANTED and the matter is STAYED.
I. Background
In 2012, Petitioner pled guilty to conspiracy to use and carry a firearm in connection with a crime of violence and possession of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(o) (Count 1); kidnapping, in violation of 18 U.S.C. § 1201(a)(1) (Count 2); and use of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (Count 3). (Doc. 105). He was sentenced to 360 months in the custody of the Bureau of Prisons. (Id.). As noted in the Judgment, "Said term consists of 240 months, as to Count 1; 276 months, as to Count 2; said terms to run concurrently; and, 84 months, as to Count 3; said term to run consecutively to the custody sentences imposed in Counts 1 and 2." (Doc. 105 at 2).
On July 22, 2016, the Court of Appeals for the Eleventh Circuit authorized Petitioner to file a second or successive motion pursuant to 28 U.S.C. § 2255 as to his claims regarding §§ 924(c) and 924(o). (Doc. 142). The United States has responded to the petition and Petitioner's reply deadline is set for March 9, 2017. (Doc. 153).
The Court of Appeals denied the application as to Petitioner's claim pertaining to his mental capacity to plead guilty. (Doc. 142 at 7).
Petitioner's motion pursuant to § 2255 contains claims that Petitioner was "denied due process when he was convicted and sentenced under the residual clauses of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 924(o) because those clauses were invalidated as unconstitutionally vague by Johnson." (Doc. 155 at 2). Petitioner's claim is based in part on the holding in Johnson v. United States, 135 S. Ct. 2251 (2015). In Johnson, the United States Supreme Court held that the residual clause of the Armed Career Criminal Act ("ACCA") (18 U.S.C. § 924(e)) is unconstitutionally vague because it creates uncertainty about how to evaluate the risks posed by a crime and how much risk it takes to qualify as a violent felony. 135 S. Ct. 2251, 2557-58, 2563 (2015).
The ACCA defines a violent felony as any crime punishable by imprisonment for a term exceeding one year that: (1) has as an element the use, attempted use, or threatened use of physical force against the person of another; (2) is burglary, arson, or extortion, or involves use of explosives; or (3) otherwise involves conduct that presents a serious potential risk of physical injury to another. 18 U.S.C. § 924(e)(2)(B); Mays v. United States, 817 F.3d 728, 730-31 (11th Cir. 2016). These three "clauses" are known as the "elements clause," the "enumerated clause," and the "residual clause," respectively. Mays at 731.
Section 924(c)(1) provides for a mandatory consecutive sentence for any defendant who uses a firearm during a crime of violence or a drug trafficking crime. 18 U.S.C. § 924(c)(1). Section 924(c)(3)(A)-(B) states:
"[N]o term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person, including any term of imprisonment imposed for the crime of violence or drug trafficking crime during which the firearm was used, carried, or possessed." 18 U.S.C. § 924(c)(1)(D)(ii).
For purposes of this subsection the term "crime of violence" means an offense that is a felony and— (A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.18 U.S.C. § 924(c)(3)(A)-(B). Though the Court of Appeals has acknowledged the similarity of the residual clauses of 18 U.S.C. §§ 924(c) and 924(e), it has yet to decide whether Johnson extends to the residual clause contained in § 924(c)(3)(B). In re Pinder, 824 F.3d 977, 978 (11th Cir. 2016 ("Our Court hasn't decided if Johnson applies to § 924(c)(3)(B). However, the language in § 924(c) and § 924(e) is very similar."). Additionally, the Court of Appeals' order authorizing Petitioner to file a second or successive motion pursuant to § 2255 stated, "We have not yet decided whether Johnson applies to § 924(c)(3)(B)"). (Doc. 142 at 4).
In its Order authorizing Petitioner to file a second or successive motion pursuant to § 2255, the Court of Appeals explained, "[W]e grant [Petitioner's] application and allow the district court to decide whether [Petitioner's] conviction under § 924(c) involved a crime of violence that qualifies under § 924(c) after Johnson." (Doc. 142 at 6). The Court of Appeals also noted, "Because § 924(o) is premised on § 924(c), [Petitioner's] § 924(o) conviction would be undermined if the companion crime of violence is not a valid predicate under § 924(c) following Johnson." (Doc. 142 at 6). Thus, two of Petitioner's three 2012 convictions may be subject to invalidation. However, Petitioner's unchallenged kidnapping 18 U.S.C. § 1201(a)(1) conviction (Count 2) remains valid. Thus, his 276 month sentence for this crime will not be impacted by the possible invalidation of his convictions pursuant to 18 U.S.C. §§ 924(c) and 924(o).
II. Motion to Stay and Hold in Abeyance
On February 9, 2017, counsel from the Federal Defender's Office entered a notice of appearance on behalf of the Petitioner. (Doc. 154). The same day, Petitioner filed the instant motion to stay and hold his § 2555 motion in abeyance. (Doc. 155). As grounds, Petitioner cites the forthcoming United States Supreme Court decision in in Lynch v. Dimaya, where the Court is expected to determine "[w]hether 18 U.S.C. [§] 16(b), as incorporated into the Immigration and Nationality Act's provisions governing an alien's removal from the United States, is unconstitutionally vague." Brief for Petitioner at (I), Lynch v. Dimaya, 137 S. Ct. 31 (2016) (No. 15-1498), 2016 WL 6768940 at *1. The definition of crime of violence contained in § 16(b) is materially identical to the definition contained in § 924(c).
The United States has objected to the motion, reiterating its argument that Petitioner's claims are procedurally barred. (Doc. 157 at 1-2). Thus, according to the United States, the Court "need not wait on the resolution of Dimaya or, for that matter, any decision directly or tangentially related to § 924(c)(3)(B)'s residual clause." (Id. at 2). The Court has examined the parties' arguments related to Petitioner's claims being procedurally barred. For the same reasons discussed in Section B of the Southern District of Florida decision in Duhart v. United States, it appears that Petitioner's claims are not procedurally barred. 2016 WL 4720424 at *1, *3-4 (S.D. Fla. Sept. 9, 2016).
The United States also made this argument in its response to Petitioner's § 2255 motion. (Doc. 147).
There are two pertinent, unanswered questions before this Court. First, whether Johnson extends to § 924(c)'s residual clause. Second, whether, if § 924(c)'s residual clause is invalidated, a kidnapping conviction pursuant to 18 U.S.C. § 1201 qualifies as crime of violence pursuant to § 924(c)'s elements clause. With regard to the second question, if the Court were to determine that a violation of § 1201 is a crime of violence pursuant to the statute's elements clause, there would be no need to wait for guidance as to whether § 924(c)'s residual clause is unconstitutionally vague. Though there is currently no binding authority on this question, upon the Court's initial evaluation, it appears that a conviction under this statute would not satisfy the elements clause of either § 924(c) or (e). Section 1201 (a)(1) states:
The United States' objection also contends that several other Court of Appeals' decisions, holding that Johnson does not invalidate § 924(c)'s residual clause, are more persuasive than Dimaya's potential outcome. (Doc. 157 at 2).
Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof, when....the person is willfully transported in interstate or foreign commerce, regardless of whether the person was alive when transported across a State boundary, or the offender travels in interstate or foreign commerce or uses the mail or any means, facility, or instrumentality of interstate or foreign commerce in committing or in furtherance of the commission of the offense....shall be punished by imprisonment for any term of years or for life and, if the death of any person results, shall be punished by death or life imprisonment.18 U.S.C. § 1201. Because a kidnapping may be committed by decoying or inveigling the victim, the elements of § 1201 do not require the use of violent, physical force. See also e.g. United States v. Bustos, 2016 WL 6821853, at *1 (E.D. Cal. Nov. 17, 2016)(containing a thorough discussion of whether § 1201 satisfies § 924(c)'s elements clause).
As to the first question raised above, either the Court of Appeals for the Eleventh Circuit or the United States Supreme Court will ultimately decide whether § 924(c)(3)(B) or the language contained therein is constitutional in light of Johnson, possibly once the Court decides Dimaya v. Lynch, 137 S. Ct. 31 (2016) and/or Beckles v. United States, 136 S. Ct. 2510 (2016). The Court has held oral arguments in both cases and decisions are anticipated this term.
The Court acknowledges that Beckles was not relied upon in seeking a stay of this matter. The Court simply notes that it may also have an impact on this or similar Johnson related § 2255 motions. --------
Therefore, the Court finds it appropriate to hold the § 2255 motion in abeyance pending the Supreme Court's decision in Dimaya. See Clinton v. Jones, 520 U.S. 681, 706 (1997) (holding that a district court "has broad discretion to stay proceedings as an incident to its power to control its own docket."); Telephone Science Corporation v. Hilton Grand Vacations Company, LLC, 2015 WL 7444409 (M.D. Fla. Nov. 20, 2015) ("Where 'a federal appellate decision ... is likely to have a substantial or controlling effect on the claims and issues,' a stay may be warranted.") (citing Miccosukee Tribe of Indians v. S. Fla. Water Mfmt. Dist., 559 F.3d 1191, 1198 (11th Cir. 2009)).
III. Conclusion
Upon consideration of the foregoing, Petitioner's motion to stay and hold in abeyance (Doc. 155) is GRANTED. Petitioner's March 9, 2017 reply deadline is CANCELLED and will be RESET once the stay is lifted. If a decision in Lynch v. Dimaya, is not reached by July 5, 2017, Petitioner is ordered to file a status report on or before July 7, 2017. Additionally, should either party become aware of controlling authority on any of the issues presented here, they are directed to file notice of such authority with the Court.
DONE and ORDERED this 24th day of February 2017.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
CHIEF UNITED STATES DISTRICT JUDGE