United States District Court, D. Alaska
ORDER RE SECTION 2255 PETITION
SHARON
L. GLEASON, UNITED STATES DISTRICT JUDGE
Before
the Court is Defendant William Piers's Motion to Vacate,
Set Aside or Correct Convictions and Sentence Pursuant to 28
U.S.C. § 2255, filed on February 23, 2017 at Docket
293.[1]
The Government responded at Docket 309; Mr. Piers's reply
was filed thereafter at Docket 310. Oral argument was not
requested and was not necessary to the Court's
determination.
BACKGROUND
On
February 12, 2001, Mr. Piers was convicted by a trial jury of
conspiracy to commit armed bank robbery in violation of 18
U.S.C. § 371, armed bank robbery in violation of 18
U.S.C. §§ 2113(a) and (d), conspiracy to commit a
violation of 18 U.S.C. § 924(c)(1)(A) in violation of 18
U.S.C. § 924(o), carrying a semi-automatic assault
weapon during and in relation to a crime of violence in
violation of 18 U.S.C. §§ 924(c)(1)(A) and (B)(ii),
and possessing a firearm with an obliterated serial number in
violation of 18 U.S.C. § 922(k). On August 9, 2001, Mr.
Piers was sentenced to 468 months'
incarceration.[2]
Mr.
Piers filed an appeal in which he argued that the trial
court's denial of his request for new trial counsel
violated his Sixth Amendment rights.[3] The Ninth Circuit affirmed
Mr. Piers's convictions, with the exception of Count
IV.[4]
On September 29, 2004, Mr. Piers filed a timely motion to
vacate his sentence and convictions under § 2255, which
was denied on October 21, 2005.[5] Mr. Piers appealed to the Ninth
Circuit, which affirmed the district court on February 12,
2009.[6]
On June
22, 2016, Mr. Piers submitted an Application for Leave to
File Second or Successive Petition Under 28 U.S.C. §
2254 or Motion Under 28 U.S.C. § 2255.[7] The Ninth Circuit
initially rejected the application on July 8,
2016.[8] However, on February 23, 2017, the Ninth
Circuit found that Mr. Piers's application “makes a
prima facie showing for relief under Johnson v. United
States, 135 S.Ct. 2551 (2015)” and granted the
application.[9] Accordingly, Mr. Piers's June 2016
motion was then deemed filed.
Mr.
Piers was self-represented when he initially submitted the
application in June 2016. On March 9, 2017, Mr. Piers filed a
Motion to Appoint Counsel.[10] On April 14, 2017, this Court
granted the motion and an attorney was appointed for Mr.
Piers.[11] On June 27, 2017, Mr. Piers filed an
amended motion to vacate.[12]
DISCUSSION
Mr.
Piers's amended petition contends that the elements of
armed bank robbery as set forth in 18 U.S.C. §§
2113(a) and (d) do not constitute a “crime of
violence” under 18 U.S.C. § 924(c)(3); therefore,
his convictions under § 924(c)(1) must be vacated. The
Government maintains that Mr. Piers's petition is
procedurally defaulted and if the Court reaches the merits of
the petition it should be denied.
1.
Procedural Default
The
Government first argues that Mr. Piers's petition is
procedurally defaulted.[13]28 U.S.C. § 2255(f) establishes a
one-year period of limitations on motions to vacate
convictions and sentence. However, § 2255(f)(3) provides
for a 1-year limitations period that begins on “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[.]”[14] Although Mr. Piers's
motion was brought more than a decade after his 2001
conviction, he argues that he “can establish cause and
prejudice to excuse any purported procedural
default.”[15] Mr. Piers maintains that because his
motion is based on Johnson II, the argument he makes
was not “reasonably available” to him until
Johnson II was decided in 2015.[16] The Supreme
Court has held that “where a constitutional claim is so
novel that its legal basis is not reasonably available to
counsel, a defendant has cause for his failure to raise the
claim in accordance with applicable state
procedures.”[17]
The
Government maintains that Mr. Piers's § 2255 motion
is procedurally defaulted because “this claim was
available to him at the time of his trial, his initial
appeal, and his first § 2255 motion [and he] failed to
raise any objection concerning this issue until
now.”[18]The Government asserts that armed bank
robbery under 18 U.S.C. §§ 2113(a) and (d) is
categorically a crime of violence under the “force
clause” of 18 U.S.C. § 924(c)(3)(A).[19]Therefore,
Johnson II's holding under the residual clause
is inapplicable.
In
Johnson II, the Supreme Court held that the
“residual clause” of the Armed Career Criminal
Act, 18 U.S.C. § 924(e)(2)(B)(ii), which defined a
“violent felony” as a felony that “involves
conduct that presents a serious potential risk of physical
injury to another, ” to be unconstitutionally
vague.[20] Mr. Piers likens the residual clause of
§ 924(e)(2)(B)(ii) to that of § 924(c)(3)(B), which
defines a crime of violence as an offense 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.” He argues that
“[b]ecause it is interpreted identically to the ACCA
residual clause, the holding of Johnson II applies
with equal force to the residual clause of 18 U.S.C. §
924(c).”[21]
Mr.
Piers also argues that armed bank robbery does not qualify as
a crime of violence under the “force clause” of
§ 924(c)(3)(A). Therefore, he maintains that he is
entitled to relief because armed bank robbery could only
qualify as a crime of violence under the type of residual
clause that Johnson II invalidated. However, Mr.
Piers does not demonstrate why his argument regarding the
force clause could not have been raised earlier. He asserts
that federal armed bank robbery does not meet the standard
set out in Johnson v. United States (Johnson
I), which “interpreted [the force clause of] 18
U.S.C. § 924(e)(2)(B)(i) to require violent
force.”[22] However, Johnson I was issued
in 2010- several years before Mr. Piers filed this renewed
motion-and therefore Mr. Piers cannot persuasively assert
that his force clause argument was not reasonably available
to him until now.[23]
For the
foregoing reasons, the Court finds that the Government has
made a persuasive showing that Mr. Piers's claim under
the force clause has been procedurally defaulted.
2.
Armed Bank Robbery is a Crime of Violence Under §
924(c)(3)(A)
Even if
Mr. Piers's claim is not procedurally defaulted, he is
not entitled to relief because controlling Ninth Circuit case
law has established that armed bank robbery is categorically
a crime of violence under the “force clause” of
18 U.S.C. § 924(c)(3). Under 18 U.S.C. §
924(c)(1)(A), a defendant is subject to an enhanced sentence
of imprisonment if he, “during and in relation to any
crime of violence . . . uses or carries a firearm, or who, in
furtherance of any such crime, possesses a
firearm[.]”[24] Section 924(c)(3)(A), the “force
clause, ” defines a “crime of violence” to
include a felony offense that “has as an element the
use, attempted use, or threatened use of physical force
against the person or property of another.”
As set
forth in 18 U.S.C. § 2113(a), bank robbery includes the
following:
Whoever, by force and violence, or by intimidation, takes, or
attempts to take, from the person or presence of another . .
. any property or money or any other thing of value belonging
to, or in the care, custody, control, management, or
possession of, any bank, credit union, or any savings and
loan association . . . . Shall be fined under this title or
imprisoned not more than twenty years; or both.
Armed
bank robbery falls under subsection (d) of § 2113, which
provides: “Whoever, in committing, or in attempting to
commit, any offense defined in subsections (a) and (b) of
this section, assaults any person, or puts in jeopardy the
life of any person by the use of a dangerous weapon or
device, shall be fined under this title or imprisoned not
more than twenty-five years, or both.”
In
United States v. Wright, the Ninth Circuit
unequivocally held that armed bank robbery under 18 U.S.C.
§ 2113(a) and (d) constitutes a crime of violence under
18 U.S.C. § 924(c)(3).[25] The Circuit Court held
“[a]rmed bank robbery qualifies as a crime of violence
because one of the elements of the offense is a taking
‘by force and violence, or by intimidation,
'” citing § 2113(a).[26] This conclusion is not
directly called into question in Johnson I or
Johnson II, neither of which interpreted §
924(c)(3)(A). Nevertheless, Mr. Piers argues that “the
Supreme Court decisions in Johnson I and Johnson
II and the intervening authority in the Ninth Circuit
and elsewhere have demonstrated that the analysis in
Selfa and Wright is no longer
valid.”[27]
This
Court is bound by Ninth Circuit precedent.[28] And yet, in
Miller v. Gammie, the Ninth Circuit recognized an
exception to this rule “where the reasoning or theory
of [] prior circuit authority is clearly irreconcilable with
the reasoning or theory of intervening higher
authority[.]”[29] This is a “high
standard”[30] met when the prior precedent has been
“effectively overruled” by the intervening higher
authority, although “the issues decided by the higher
court need not be identical in order to be
controlling.”[31] “For [a court] to hold that an
intervening Supreme Court decision has ‘effectively
overruled' circuit precedent, the intervening decision
must do more than simply ‘cast doubt' on our
precedent. Rather, it must ‘undercut the theory or
reasoning underlying the prior circuit precedent in such a
way that the cases are clearly
irreconcilable.'”[32]
Here,
Mr. Piers has not shown that the Circuit's holding of
Wright is “clearly irreconcilable” with
or has been “effectively overruled” by
Johnson I and Johnson II. Neither of the
Johnson decisions involved armed bank robbery in
violation of 18 U.S.C. §§ 2113(a) and (d), the
statutes at issue both in this case and in Wright.
In Johnson I, the Supreme Court held that the
defendant's conviction for simple battery under Florida
law did not qualify as a “violent felony” under
...