United States District Court, D. Colorado
ORDER DENYING § 2255 MOTION
A. BRIMMER UNITED STATES DISTRICT JUDGE.
John Phillip Carter, has filed a Motion to Vacate Sentence
(“§ 2255 motion”) (Docket No. 55). The
United States has responded to the § 2255 motion. Docket
reasons discussed below, the § 2255 motion will be
Carter pled guilty to one count of armed bank robbery (18
U.S.C. § 2113(a) and (d)), four counts of bank robbery
(18 U.S.C. § 2113(a)), and one count of brandishing a
firearm in furtherance of a crime of violence (18 U.S.C.
§ 924(c)(1)(A)(ii)), namely, the armed bank robbery
charged in the first count. Docket Nos. 17, 42 at 4-7, 51 at
1-2. The Court sentenced him to 92 months for the bank
robberies and 84 months consecutive for the brandishing
offense. Docket No. 51 at 3.
Carter moves, pursuant to 28 U.S.C. § 2255, to vacate
his § 924(c) conviction because it violates the Fifth
Amendment's Due Process Clause. Docket No. 55 at 1. Mr.
Carter claims that he is entitled to relief under Johnson
v. United States, __U.S.__, 135 S.Ct. 2551 (2015)
(“Johnson”) because his § 924(c)
conviction violates Johnson based on that
statute's residual clause. Id.
time that Mr. Carter filed his § 2255 motion and during
the briefing in this case, he was represented by the Office
of the Federal Public Defender. However, the Court allowed
the assigned Federal Public Defender to withdraw on September
7, 2018. Docket No. 65. The basis for the motion to withdraw
was that, given the Tenth Circuit's ruling in United
States v. Ontiveros, 875 F.3d 533 (10th Cir. 2017), the
Office of the Federal Public Defender no longer believed that
Mr. Carter may qualify for relief under Johnson and
thus the scope of the Office's representation of Mr.
Carter fell outside of General Order 2015-4. Docket No. 64 at
2. The motion also noted that Mr. Carter has been released
from custody. Id. Mr. Carter has not provided a new
Motion is Untimely
answer, the United States claims that Mr. Carter's motion
is untimely. Docket No. 58 at 2-3. A § 2255 motion
usually must be filed within one year after the judgment is
final. 28 U.S.C. § 2255(f)(1). Here, judgment entered on
December 20, 2005. Docket No. 51. Mr. Carter did not file a
direct appeal, so his conviction became final fourteen days
later upon “expiration of the time in which to take a
direct criminal appeal.” United States v.
Prows, 448 F.3d 1223, 1227-28 (10th Cir. 2006). He filed
his § 2255 motion on June 20, 2016. Docket No. 55.
Carter argues his motion is timely under 28 U.S.C. §
2255(f)(3), which permits filing with a 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 to cases
on collateral review.” Docket No. 61 at 2.
Specifically, Mr. Carter claims that, although
Johnson involved the Armed Career Criminal Act
(“ACCA”), his challenge to the residual clause of
§ 924(c) is analogous: “Mr. Carter's claim
challenges § 924(c)(3)(B) on the ground that it ties an
imprecise standard of risk to a judicially imagined
‘ordinary case' of a crime. (Doc. 58 at 8-11.) It
is, thus, a Johnson claim; in the terms of §
2255(f)(3), Mr. Carter ‘assert[s]' the
‘right' that was ‘newly recognized by the
Supreme Court' in Johnson.” Id.
However, the Tenth Circuit has rejected a nearly identical
argument. See United States v. Salvador, 724
Fed.Appx. 670, 672 (10th Cir. 2018) (unpublished) (noting
that “a defendant cannot invoke Johnson to
proceed under § 2255(f)(3) unless the defendant is
challenging on vagueness grounds the ACCA's residual
clause”); United States v. Hullum, No.
11-cr-00127-DME-02, 2016WL7178312, at *3 (D. Colo. Dec. 9,
2016). Here, Mr. Carter is not challenging the ACCA's
residual clause. His § 2255 motion is therefore
There is No. Johnson Violation
Mr. Carter's motion is timely, it must be denied on the
merits. Mr. Carter's motion is almost identical to the
argument made in United States v. Higley, 726
Fed.Appx. 755 (10th Cir. 2018) (unpublished). In
Higley, as here, the defendant was convicted of a
violation of 18 U.S.C. § 924(c) based on a conviction
for armed bank robbery under 18 U.S.C. §§ 2113(a)
and (d). Id. at 716. The defendant in
Higley argued that armed bank robbery no longer
qualifies as a crime of violence under § 924(c) because
the “residual” clause of § 924(c) is
unconstitutionally vague under Johnson, which
invalidated the residual clause of the ACCA for the same
reason. 726 Fed.Appx. at 716. Mr. Carter makes the same
argument. Docket No. 55 at 2-11. The Tenth Circuit in
Higley, after assuming that the defendant's
§ 2255 motion was timely and after applying the
categorical approach, held that the defendant's
“conviction for armed bank robbery  constitutes a
‘crime of violence' under the alternate,
elements-based definition in § 924(c)(3)(A).” 726
Fed.Appx. at 717. See also United States v.
McCranie, 889 F.3d 677, 681 (10th Cir. 2018) (bank
robbery under § 2113(a) is a crime of violence);
United States v. Rinker, __F. App'x__,
2018WL3996828, at *3 (Aug. 21, 2018) (unpublished) (armed
bank robbery is, after McCranie, indisputably a
crime of violence). Applying the categorical approach here,
the Court finds that the defendant's argument is
foreclosed by McCranie and Higley. As a
result, assuming that Mr. Carter's motion is timely, it
must nevertheless be denied on the merits since bank robbery
and armed bank robbery are crimes of violence.
Rule 11(a) of the Section 2255 Rules, a “district court
must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.” Under
28 U.S.C. § 2253(c)(2), the Court may issue a
certificate of appealability “only if the applicant has
made a substantial showing of the denial of a constitutional
right.” Such a showing is made only when “a
prisoner demonstrates ‘that jurists of reason would
find it debatable' that a constitutional violation
occurred, and that the district court erred in its
resolution.” United States v. Pinson, 584 F.3d
972, 975 (10th Cir. 2009) (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000)). In the ...