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Wiseman v. United States

United States District Court, D. New Mexico

July 27, 2018

LONNIE WISEMAN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

         On May 16, 2017, Petitioner Lonnie Ray Wiseman filed his FIRST AMENDED MOTION TO VACATE JUDGMENT UNDER 28 U.S.C. § 2255 (CV Doc. 10) (First Amended Motion). The First Amended Motion has been fully briefed, [1] and the United States Court of Appeals for the Tenth Circuit has held that it is not a second-or-successive § 2255 Motion.[2]Accordingly, the Court has considered the merits of Petitioner's claims, but will dismiss the First Amended Motion.

         I. DISCUSSION

         In April of 1997, a jury convicted Petitioner of six counts of robbery affecting interstate commerce (Counts 1-5 and 7), contrary to 18 U.S.C. § 1951(a), and two counts of use of a firearm during a crime of violence (Counts 6 and 8), contrary to 18 U.S.C. § 924(c)(1). CR Docs. 148, 188-89. Petitioner's convictions were based on a series of grocery store robberies carried out by Petitioner and an accomplice in New Mexico. See United States v. Wiseman, 172 F.3d 1196, 1201-03 (10th Cir. 1999), abrogated by Rosemond v. United States, __ U.S.__, 134 S.Ct. 1240, 1251 (2014). In counts 6 and 8, the indictment charged Petitioner under both § 924(c) and 18 U.S.C. § 2, which relates to aider and abettor liability. Id. at 1217. Petitioner was convicted of the § 924(c) offenses on the theory that he had aided and abetted his companion's use of a Tec-9 firearm during the last two robberies, in Silver City and Clovis, New Mexico. Id. Petitioner challenges his firearm convictions under Johnson v. United States, __ U.S.__, 135 S.Ct. 2551, 2563 (2015) (Johnson II) and under Rosemond, which abrogated the legal standard announced by the Tenth Circuit Court of Appeals in affirming Petitioner's § 924(c) convictions on his direct appeal. See Wiseman, 172 F.3d at 1217. Petitioner also argues that under Weekes v. Fleming, 301 F.3d 1175 (10th Cir. 2002), Petitioner should receive certain credit against his federal sentence. The United States argues that Petitioner's claims under Rosemond and Weekes are time barred and that his Johnson II claim is without merit.

         A. Johnson II Claim

         For the purposes of § 924(c)(1), a crime of violence is defined under § 924(c)(3) as a felony offense 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.

         Subsection (A) is known as the elements clause, while Subsection (B) is the residual clause. United States v. Salas, 889 F.3d 681, 684 (10th Cir. 2018), en banc reh'g denied (10th Cir. May 23, 2018). The residual clause of § 924(c)(3) is similarly worded to the residual clause of the Armed Career Criminal Act (ACCA). See § 924(e)(2)(B)(ii) (defining “violent felony” as one which “otherwise involves conduct that presents a serious potential risk of physical injury to another[.]”).

         In Johnson II, decided June 26, 2015, the Supreme Court held that the residual clause of the ACCA is unconstitutionally vague. See 135 S.Ct. at 2563. Johnson II announced a new rule of constitutional law that is retroactively applicable to cases on collateral review. See Welch v. United States, __ U.S.__, 136 S.Ct. 1257 (2016). Accordingly, a claim based on the right recognized by the Supreme Court in Johnson II is timely under § 2255(f)(3) if it is filed by June 26, 2016.

         Petitioner claims that the residual clause of § 924(c)(3) is void for vagueness under Johnson II. He asserts that his predicate offense of Hobbs Act robbery is not a crime of violence under the elements clause of § 924(c)(3), and consequently, that his § 924(c)(1) convictions must be vacated. Although Petitioner did not file his First Amended Motion until May 16, 2017, he first raised his vagueness challenge to § 924(c)(3)(B) on June 24, 2016, when he filed the original § 2255 motion challenging his amended judgment. CV Doc. 1. The Court finds that Petitioner's claim will relate back to June 24, 2016, the date of the original pleading in which Petitioner's vagueness challenge was raised, and that it was therefore filed within one year of the decision in Johnson II. See Fed. R. Civ. P. 15(c); see also United States v. Espinoza-Saenz, 235 F.3d 501, 505(10th Cir. 2000) (holding that under Rule 15(c) an untimely amendment to a § 2255 motion that clarifies or amplifies a claim or theory in the original motion may, in the court's discretion, relate back to the date of the original motion if the original motion was timely filed). The United States does not challenge the timeliness of Petitioner's § 924(c)(3)(B) claim, nor does it argue that the right asserted by Petitioner has not been made retroactively applicable.[3] Accordingly, the Court will address the merits of Petitioner's claim.

         In Sessions v. Dimaya, __U.S.__, 138 S.Ct. 1204, 1223 (2018), the Supreme Court held that the residual clause of 18 U.S.C. § 16 is unconstitutionally void for vagueness. Dimaya reached this conclusion through a “straightforward application” of Johnson II, which dictated the result in Dimaya because of the similarity between § 16(b) and the residual clause of the ACCA. Id. at 1213, 1223.

Johnson tells us how to resolve this case. That decision held that “[t]wo features of [ACCA's] residual clause conspire[d] to make it unconstitutionally vague.” 576 U.S., at __, 135 S.Ct., at 2557. Because the clause had both an ordinary-case requirement and an ill-defined risk threshold, it necessarily “devolv[ed] into guesswork and intuition, ” invited arbitrary enforcement, and failed to provide fair notice. Id., at __, 135 S.Ct., at 2559. Section 16(b) possesses the exact same two features. And none of the minor linguistic disparities in the statutes makes any real difference. So just like ACCA's residual clause, § 16(b) “produces more unpredictability and arbitrariness than the Due Process Clause tolerates.” Id., at __, 135 S.Ct., at 2558.

Id. at 1223. In reliance on Johnson II and Dimaya, the Tenth Circuit Court of Appeals has determined that the residual clause of § 924(c)(3), which contains language identical to §16(b), is also unconstitutional. Salas, 889 F.3d at 686-688 (“Dimaya compels the conclusion that § 924(c)(3)(B) is unconstitutional, too.”). Accordingly, the Court concludes that Petitioner's vagueness challenge to § 924(c)(3)(B) has been resolved in his favor by the Tenth Circuit Court of Appeals and the Supreme Court. Petitioner's convictions under § 924(c) can therefore stand only if his predicate offense, Hobbs Act robbery contrary to § 1951(a), qualifies as a crime of violence under the elements clause.

         When determining whether a prior conviction is a crime of violence, the Court takes “a formal categorical approach, looking only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions.” Taylor v. United States, 495 U.S. 575, 600 (1990). In applying Taylor, the Tenth Circuit Court of Appeals has held that if “the statute is ambiguous, or broad enough to encompass both violent and nonviolent crimes, a court can look beyond the statute ‘to certain records of the prior proceeding, such as the charging documents, the judgment, any plea thereto, and findings by the [sentencing] court.'” United States v. Dwyer, 245 F.3d 1168, 1171 (10th Cir. 2001) (quoting United States v. Zamora, 222 F.3d 756, 764 (10th Cir. 2000)).

         Section 1951 criminalizes interference with commerce by threats or violence. It provides that, “Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section” is guilty of violating the Hobbs Act. § 1951(a). “The Hobbs Act . . . is a divisible statute setting out two separate crimes-Hobbs Act robbery and Hobbs Act extortion.” United States v. O'Connor, 874 F.3d 1147, 1152 (10th Cir. 2017) (citing United States v. Gooch, 850 F.3d 285, 291-92 (6th Cir. 2017) (noting that the Hobbs Act defines robbery and extortion in separate provisions and that all circuits to consider the issue have found it to be divisible)). It is undisputed that Petitioner was convicted of Hobbs Act robbery. See CR Doc. 222; CV Doc. 1 at 1-2; CV Doc. 10 at 2; CV Doc. 13 at 1-2. As used in § 1951(a),

The term “robbery” means the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.

§ 1951(b)(1).

         Petitioner argues that Hobbs Act robbery does not require an element of physical force because the offense can be committed by causing fear of injury through means other than physical force, it may involve force that is only minimal, and it may be accomplished by causing fear of injury to property. CV Doc. 1 at 7-8; CV Doc. 10 at 17-21. The United States maintains that Hobbs Act robbery does contain an element of force and remains a crime of violence under § 924(c)(3)(A) because it “necessarily entails the attempted or threatened use of physical force.” CV Doc. 13 at 10. The United States relies on United States v. Moreno, 665 Fed.Appx. 678, 681 (10th Cir. 2016) (unpublished), which held that Hobbs Act robbery is a crime of violence under the elements clause in § 924(c)(3)(A), and on numerous cases from other circuits that have reached the same conclusion. If Moreno were a published case it would be binding on this Court and that would end the inquiry; however, Moreno is unpublished, and the cases of other circuits may be persuasive but do not control the issue.

         Petitioner bases his argument primarily on Johnson v. United States, 559 U.S. 133 (2010) (Johnson I) and United States v. Perez-Vargas, 414 F.3d 1282 (10th Cir. 2005). In Johnson I, the Supreme Court interpreted the elements clause of the ACCA, which defines a violent felony as one that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). Johnson I held that “in the context of a statutory definition of ‘violent felony,' the phrase ‘physical force' means violent force-that is, force capable of causing physical pain or injury to another person.” 559 U.S. at 140. Section 924(c)(3)(A) is similar but not identical to the ACCA. See § 924(c)(3)(A) (defining a crime of violence as one that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another” (emphasis added)).

         Petitioner assumes that Johnson I applies equally to § 924(c)(3)(A) despite its textual differences from the ACCA, and contends that a crime of violence under § 924(c)(3) must also contain an element of force against a person. The Tenth Circuit Court of Appeals has held that, “Because Hobbs Act robbery criminalizes conduct involving threats to property, it does not qualify as a crime of violence under the Guidelines' force clause.” United States v. O'Connor, 874 F.3d 1147, 1158 (10th Cir. 2017). However, the Guidelines provision addressed in O'Connor is identical to the elements clause of the ACCA and is applicable only to crimes that necessarily entail the use or threatened use of physical force against a person. Id. “There is nothing incongruous about holding that Hobbs Act robbery is a crime of violence for purposes of 18 U.S.C. § 924(c)(3)(A), which includes force against a person or property, but not for purposes of U.S.S.G. § 4B1.2(a)(1), which is limited to force against a person.” Accordingly, the Court concludes that for the purposes of § 924(c)(3), a crime of violence may involve physical force that is directed against property rather than another person.

         Relying on Perez-Vargas, Petitioner next contends that Hobbs Act robbery is not a crime of violence because “fear of injury” may be caused by means that involve minimal physical force or no force at all. In Perez-Vargas, the Tenth Circuit Court of Appeals analyzed Colorado's third degree assault statute, which criminalized the knowing or reckless causation of bodily injury without requiring that the injury be caused by any specific means. 414 F.3d at 1285. The Court determined that the offense was not a crime of violence because the statute would allow conviction based on acts “that would not use or threaten the use of physical force: recklessly shooting a gun in the air to celebrate, intentionally placing a barrier in front of a car causing an accident, or intentionally exposing someone to hazardous chemicals.” Id. at 1286-87.

         But, as recognized in United States v. McCranie, 889 F.3d 677, 679 (10th Cir. 2018), Perez-Vargas has been overruled. The Tenth Circuit Court of Appeals has concluded that the Supreme Court “specifically rejected the contention that ‘one can cause bodily injury without the use of physical force.'” United States v. Ontiveros, 875 F.3d 533, 536-37 (10th Cir. 2017) (quoting United States v. Castleman, __U.S.__, 134 S.Ct. 1405, 1414 (2014)). Although Castleman addressed the force required for a misdemeanor crime of violence rather than the force involved under the ACCA or § 924(c)(3), its reasoning applies equally to physical force in the context of violent felonies. Ontiveros, 875 F.3d at 537-38. “‘[P]hysical force' is simply ‘force exerted by and through concrete bodies,' as opposed to ‘intellectual force or emotional force.'” Castleman, 134 S.Ct. at 1414 (quoting Johnson I, 559 U.S. at 138). This includes the indirect application of force, and even the omission of action. Ontiveros, 875 F.3d at 538; see also United States v. Cravens, 719 Fed.Appx. 810, 816 (10th Cir. 2017) (“[T]he ‘use of physical force' necessary to satisfy the elements clause of § 924(c)(3)(A) includes the indirect application of force, i.e., exposing one to hazardous chemicals.”). If an injury may not be caused without the use of physical force, then causing fear of injury would necessarily entail at least the threatened use of physical force. See McCranie, 889 F.3d at 680-81 (“Bank robbery by intimidation [under 18 U.S.C. § 2113(a)] involves the threatened ...


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