United States District Court, D. Colorado
ORDER DENYING § 2255 MOTION TO VACATE
E. Blackburn, United States District Judge
matter is before me on the 28 U.S.C. § 2255 Motion To
Vacate Sentence [#195] filed by defendant-movant Ishmael Mosely
on June 20, 2016. The government filed an answer [#209], and
Mr. Mosely filed a reply [#210]. In addition, the government
filed a notice of supplemental authority [#211]. I deny the
30, 2016, defendant-movant Roman Santistevan filed a pro
se motion under § 2255 [#197, #198]. A short time
later, Mr. Santistevan filed, through counsel, a Motion To
Adopt and Consolidate [#202]. Mr. Santistevan sought an order
permitting him to adopt the motion [#195] of Mr. Mosely as a
brief in support of the motion of Mr. Santistevan. In
addition, he sought an order consolidating these two §
2255 motions for purposes of briefing. The court entered an
order [#204] granting the motion to adopt and consolidate.
The response [#209] and reply [#210] thus address the claims
of both Mr. Mosely and Mr. Santistevan. Essentially, the
claims of the two defendants-movants are identical. In this
order, I will refer to the motion [#195] of Mr. Mosely as the
motion of the movants.
STANDARD OF REVIEW
28 U.S.C. § 2255(a), a federal prisoner claiming the
right to be released on the ground that his federal 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, ” may move to
have his sentence vacated, set aside, or corrected.
Mr. Mosley and Mr. Santistevan were convicted of multiple
counts of Hobbs Act Robbery, in violation of 18 U.S.C. §
1951, and of using or carrying a dangerous weapon during a
crime of violence, contrary to 18 U.S.C. § 924(c). The
§ 924(c) conviction increased the sentence of Mr. Mosely
by 10 years. The sentence of Mr. Santistevan also was
increased under § 924(c) although the precise amount of
that increase is not made clear in the briefing.
§ 924(c), any person who uses or carries a firearm
during and in relation to a crime of violence, or who
possesses a firearm in furtherance of such a crime, is
subject to an additional prison sentence, as specified in
§ 924(c)(1)(A). For this provision to be applicable, at
least one predicate or underlying offense must have been a
“crime of violence.” Here, the predicate offenses
were Hobbs Act Robbery, in violation of 18 U.S.C. §
1951. A sentence for a § 924(c) offense must be
“in addition to, ” meaning consecutive to, the
punishment provided for the underlying crime of violence. 18
U.S.C. § 924(c)(1)(D)(ii).
developments in the law since they were sentenced, Mr. Mosely
and Mr. Santistevan now claim that their convictions for
Hobbs Act Robbery are not crimes of violence, as that term is
defined in § 924(c)(3). Section 924(c)(3) defines the
term “crime of violence” as an offense that is a
felony and that -
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of
(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). I will refer to subparagraph (A)
as the Physical Force Clause and subparagraph (B) as the Risk
of Force Clause. Hobbs Act Robbery is a felony.
movants make two arguments to support their claim that Hobbs
Act Robbery is not now a crime of violence, as that term is
defined in § 924(c)(3). First, they contend Hobbs Act
Robbery does not fit the definition of a crime of violence as
stated in the Physical Force Clause, § 924(c)(3)(A). If
that is true, then Hobbs Act Robbery can be considered a
crime of violence only if it fits the definition provided in
the Risk of Force Clause, § 924(c)(3)(B).
their second argument, the movants contend the Risk of Force
Clause now is invalid because it is void for vagueness. This
argument is based on the ruling of the Supreme Court of the
United States that a somewhat similar provision in the Armed
Career Criminal Act (ACCA) is unconstitutionally vague.
See Johnson v. U.S., ___ U.S. ___, ___, 135 S.Ct.
2551, 2563 (2015) (Johnson II). If Hobbs Act Robbery
does not fit the definition of a crime of violence stated in
§ 924(c)(3)(A) and § 924(c)(3)(B) is void under
Johnson II, then, the movants assert, their §
924(c) sentence enhancements must be vacated.
response to the present motion, the government contends the
motion was not filed within the one year period of limitation
provided in § 2255(f). Generally, that one year period
begins to run on the date the conviction in question became
final. Judgment entered on the convictions of Mr. Mosely on
September 17, 2009 [#120]. He did not file a direct appeal
and his time to file a direct appeal expired on about October
1, 2009. The convictions of Mr. Mosely became final on or
about October 1, 2009. U.S. v. Prows, 448 F.3d 1223,
1227-28 (10th Cir. 2006). The convictions of Mr. Santistevan
became final when the Supreme Court denied his petition for
certiorari on April 18, 2011. Id.
Without question, the current motion was filed more than one
year after the convictions and sentences of the movants
Mosely and Mr. Santistevan claim they are entitled to the
benefit of the extended period of limitation provided in
§ 2255(f)(3). Under that subsection, a § 2255
motion may 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 ...