United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA United States District Judge.
case is before the court on defendant Dale Hill's pro se
motions to vacate sentence pursuant to 28 U.S.C. § 2255
(Doc. 52) and to appoint counsel (Doc. 57). Defendant claims
that the sentence enhancement based on use of a firearm
during and in relation to a crime of violence, under 18
U.S.C. § 924(c), is unconstitutional in light of
Johnson v. United States, 135 S.Ct. 2551 (2015). For
the reasons set forth below, this court dismisses
January 23, 2012, defendant pleaded guilty to armed bank
robbery, in violation of 18 U.S.C. §§ 2113(a) and
(d), and use of a firearm during and in relation to a crime
of violence, in violation of 18 U.S.C. §
924(c)(1)(a)(ii). The court sentenced defendant to 77 months
for armed bank robbery and a consecutive term of 84 months
for brandishing a firearm during the robbery, for a
controlling sentence of 161 months. Judgment was entered on
April 24, 2012, and defendant did not file a direct appeal.
filed his § 2255 motion on June 27, 2016. Defendant
seeks collateral review approximately four years after his
conviction was final. He relies on a right that the United
States Supreme Court recognized in Johnson, which
was made retroactively applicable to cases on collateral
review in Welch v. United States, 136 S.Ct. 1257,
1265 (2016). See 28 U.S.C. § 2255(f)(3).
defendant's plea agreement, defendant waived the right to
challenge his sentence in a collateral attack under §
2255 (except as limited by United States v.
Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001)), 18
U.S.C. § 3582(c)(2), and a motion brought under
Fed.R.Civ.P. 60(b). The government seeks to enforce this
waiver as to defendant's claims challenging his sentence.
a knowing and voluntary waiver of 18 U.S.C. § 2255
rights is enforceable. United States v.
Frazier-LeFear, 665 F. App'x 727, 729 (10th Cir.
2016) (citing Cockerham, 237 F.3d at 1183). The
court, however, considers whether enforcing the waiver will
result in a “miscarriage of justice.”
Id. (citing United States v. Hahn, 359 F.3d
1315, 1327 (10th Cir. 2004)).
Tenth Circuit recently addressed whether a
Johnson-based sentencing challenge would entail a
miscarriage of justice, and ultimately held that it did not
under Tenth Circuit precedent. See Frazier-LeFear,
665 F. App'x at 731-32 (10th Cir. 2016) (noting that the
miscarriage of justice “exception is implicated only
when the asserted legal error concerns the waiver itself,
rather than some other aspect of the proceedings such as the
determination of the defendant's sentence . .
.”). Here, defendant agreed to relinquish his right to
collaterally attack any sentence imposed in accordance with
his plea agreement, which includes any challenge under
Johnson. See Id. at 732 (“The fact
that [Ms. Frazier-LeFear's] relinquishment of this right
results in the lost opportunity to raise a constitutional
challenge under Johnson reflects the natural
operation, not the invalidity, of the waiver.”).
Johnson-based challenge to use of armed bank robbery
as a predicate crime of violence under 18 U.S.C. §
924(c) is a challenge to the lawfulness of his sentence, not
to the lawfulness of his waiver. As such, it does not support
a finding that enforcement of the waiver would result in a
miscarriage of justice. See Frazier-LeFear, 665 F.
App'x at 732. Defendant entered into his
collateral-challenge waiver knowingly and voluntarily, and
although the Supreme Court changed the law in
Johnson, this change did not render defendant's
waiver itself unlawful. Consequently, the court enforces
defendant's collateral-challenge waiver.
extent that defendant is arguing ineffective assistance of
counsel for not raising this issue previously;
Johnson is a recent change in the law. Defendant
cannot demonstrate that defense counsel's performance was
deficient based on a case that had not yet been decided at
the time defendant was sentenced. See United States v.
Taylor, 415 F. App'x 96, 99 (10th Cir. 2011)
(stating that the Sixth Amendment's right to effective
assistance of counsel does not require counsel to predict
future changes in the law) (citing United States v.
Harms, 371 F.3d 1208, 1212 (10th Cir. 2004)).
without the wavier, defendant would be ineligible for relief.
The cases cited by defendant address the residual clauses of
18 U.S.C. §§ 16(b) and 924(c). However, other
circuits have held that armed bank robbery is a crime of
violence under § 924(c)'s force or element clause,
not the residual clause. See, e.g., United
States v. McNeal, 818 F.3d 141, 157 (4th Cir. 2016)
(“[W]e are satisfied that bank robbery under 18 U.S.C.
§ 2113(a) is a ‘crime of violence' within the
meaning of the force clause of 18 U.S.C. § 924(c)(3),
because it ‘has as an element the use, attempted use,
or threatened use of physical force'-specifically, the
taking or attempted taking of property ‘by force and
violence, or by intimidation.'”); In re
Hines, 824 F.3d 1334, 1337 (11th Cir. 2016)
(“[E]ven were we to extrapolate from the
Johnson holding a conclusion that §
924(c)(3)(B) was also unconstitutional, it would not help
Hines because his § 924(c) conviction on Count 2 was
explicitly based on his companion Count 1 conviction for
armed bank robbery, in violation of 18 U.S.C. § 2113(a)
and (d). And a conviction for armed bank robbery clearly
meets the requirement for an underlying felony offense, as
set out in § 924(c)(3)(A), which requires the underlying
offense to include as an element, “the use, attempted
use, or threatened use of physical force against the person
or property of another.”).
Johnson did not clearly invalidate §
924(c)'s residual clause. Instead, Johnson held
that the residual clause of the Armed Career Criminal Act, 18
U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague.
See Johnson, 135 S.Ct. at 2563.
defendant is not entitled to relief, the court denies his
motion for appointment of counsel as well as his request for
an evidentiary hearing. An evidentiary hearing is generally
not required when “the motion and files and records of
the case conclusively show that the prisoner is entitled to
no relief.” 28 U.S.C. ...