United States v. Lynch
| Decision Date | 31 July 2017 |
| Docket Number | Cause No. CR 99–018–M–DWM,CV 16–156–M–DWM |
| Citation | 268 F.Supp.3d 1099 |
| Parties | UNITED STATES of America, Plaintiff/Respondent, v. John Lanny LYNCH, Defendant/Movant. |
| Court | U.S. District Court — District of Montana |
David F. Ness, Federal Defenders of Montana, Great Falls, MT, for Defendant.
ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY
This matter comes before the Court on Defendant/Movant Lynch's motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. The defendant is a federal prisoner represented by Assistant Federal Defender David Ness. Lynch seeks relief under Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), which was made retroactive to final judgments by Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016). He previously litigated a § 2255 motion, but, on December 22, 2016, the Ninth Circuit Court of Appeals authorized him to file a second § 2255 motion. See Order (Doc. 251) at 1.
The motion is subject to preliminary review to determine whether "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b) ; see also Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts.
A petitioner "who is able to state facts showing a real possibility of constitutional error should survive Rule 4 review." Calderon v. United States Dist. Court , 98 F.3d 1102, 1109 (9th Cir. 1996) (" Nicolaus ") (Schroeder, C.J., concurring) (referring to Rules Governing § 2254 Cases). "[I]t is the duty of the court to screen out frivolous applications and eliminate the burden that would be placed on the respondent by ordering an unnecessary answer." Advisory Committee Note (1976), Rule 4, Rules Governing § 2254 Cases, cited in Advisory Committee Note (1976), Rule 4, Rules Governing § 2255 Proceedings.
Lynch was initially charged with Hobbs Act conspiracy, Hobbs Act robbery, and a gun count. On November 22, 1999, the grand jury handed down a superseding indictment alleging one count of committing a robbery affecting interstate commerce, a violation of 18 U.S.C. §§ 1951(a) and 2 (Count 1); and one count of using or carrying a firearm during and in relation to a crime of violence, a violation of 18 U.S.C. §§ 924(c) and 2 (Count 2). See Superseding Indictment (Doc. 68).
Following a jury trial, Lynch was convicted on both counts. See Verdict (Doc. 164) at 1. On July 31, 2000, Lynch was sentenced to serve 240 months on Count 1 and 60 months on Count 2, consecutive. See Minutes (Doc. 182); Judgment (Doc. 185) at 2. At the time, that was the statutory maximum sentence on both counts.
Lynch appealed, but his conviction was affirmed. See United States v. Lynch , 437 F.3d 902, 908–16 (9th Cir. 2006) (en banc) (per curiam). His petition for writ of certiorari was denied on October 2, 2006. See Lynch v. United States , 549 U.S. 836, 127 S.Ct. 89, 166 L.Ed.2d 62 (2006). His conviction became final on that day. See Gonzalez v. Thaler , 565 U.S. 134, 150, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012).
Lynch filed a motion under 28 U.S.C. § 2255 on September 26, 2007. The motion and a certificate of appealability were denied on June 3, 2008. See Mot. § 2255 (Doc. 217); Order (Doc. 223). The Court of Appeals denied a certificate of appealability on August 19, 2009. Order (Doc. 228).
On December 22, 2016, the Court of Appeals granted Lynch leave to proceed with a second or successive § 2255 motion. "A district court shall dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section." 28 U.S.C. § 2244(b)(4) ; see also id. § 2255(h). Johnson is a new rule of constitutional law made retroactive, in Welch , to cases on collateral review. The rule was previously unavailable, as no legal authority held the ACCA's residual clause unconstitutionally vague until Johnson. Whether Lynch is entitled to relief under Johnson or not, his new motion does "contain ... a new rule of constitutional law." 28 U.S.C. § 2255(h)(2) (emphasis added). The requirement of 28 U.S.C. § 2255(h)(2) is met, and the merits of the motion must be considered.
In Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (" Johnson " or " Johnson II "), the Court considered the meaning of a provision in the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). The ACCA imposes a harsher sentence on a person convicted of a firearms offense if the person has three prior convictions for a violent felony or controlled substance offense. The Act defines a "violent felony" as a felony that:
18 U.S.C. § 924(e)(2)(B). Johnson discussed only the italicized clause, commonly called the "residual" clause.
The Supreme Court found the residual clause so vague that it deprived defendants of fair notice of the consequences of their decisions and so loose that it invited arbitrary enforcement. Therefore, the decision held, federal sentencing courts may no longer enhance a defendant's sentence based on a prior conviction when that conviction qualifies as a "violent felony" only under the residual clause. See Johnson , 135 S.Ct. at 2555–60, 2563.
Johnson did not address either subsection (i) or the first line of subsection (ii) in § 924(e)(2)(B). Those provisions remain valid.
Lynch challenges his conviction not under the ACCA but under 18 U.S.C. § 924(c)(1)(A) and (iii) for using or carrying a firearm during and in relation to a "crime of violence." The definition of a "crime of violence" in § 924(c)(3) is not identical to the definition of a "violent felony" in § 924(e)(2)(B), but it is similar:
18 U.S.C. § 924(c)(3).
The Court will assume, for the sake of argument, that the residual clause in § 924(c)(3)(B) is unconstitutionally vague for the reasons explained in Johnson II. See Dimaya v. Lynch , 803 F.3d 1110, 1120 (9th Cir. 2015) (), cert. granted , ––– U.S. ––––, 137 S.Ct. 31, 195 L.Ed.2d 902 (2016).1 But, even so, Lynch's conviction and sentence under § 924(c) would still be valid if the "crime of violence" he committed "ha[d] as an element the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. § 924(c)(3)(A ).
For the following reasons, Lynch's conviction and sentence remain valid after Johnson.
The caption of the Indictment and the text of Count 2, the § 924 count, accused Lynch of "robbery affecting commerce in violation of 18 U.S.C. 1951(a)." Superseding Indictment (Doc. 68) at 1, 2. In turn, Count 1 accused Lynch of "tak[ing] or obtaining] by means of actual or threatened force or violence from the person of Brian David Carreiro, and against [his] will ... personal property ... all in violation of 18 U.S.C. 1951(a) and 2." Id. at 2.
As to Count 1, and as relevant here, the jury was instructed that the United States must prove Lynch "caused Brian Carreiro to part with property by the wrongful use of force or the threat of force ... with the intent to obtain the property that the defendant knew he was not entitled to receive." Jury Instr. No. 24 (Doc. 156 at 24). The jury was also given the definition of robbery in 18 U.S.C. § 1951(b)(1) and of "taking." See Jury Instr. Nos. 27, 28 (Doc. 156 at 27–28). Lynch was found guilty of both Count 1 and Count 2. See Verdict (Doc. 164) at 1.
The predicate crime for Lynch's conviction under § 924(c), therefore, is robbery as defined by the Hobbs Act. To prevail on his § 2255 motion, he must show that robbery under the Hobbs Act is not a "crime of violence."
Lynch agrees that United States v. Mendez , 992 F.2d 1488 (9th Cir. 1993), is a relevant precedent, see Mot. § 2255 (Doc. 252) at 12, 15–16, but it is more significant than he suggests. Mendez held that conspiracy to commit a Hobbs Act robbery is a "crime of violence" under § 924(c)(3)(B). See Mendez , 992 F.2d at 1491–92. After Johnson , that conclusion is at least questionable.
But before considering the status of conspiracy to commit a Hobbs Act robbery, the Mendez court stated that a Hobbs Act robbery is a crime of violence under § 924(c)(3)(A). It said:
Robbery indisputably qualifies as a crime of violence. See 18 U.S.C. § 1951(b)(1) ().
Mendez, 992 F.2d at l491.
The parenthetical phrase describing robbery as containing an "element" of "actual or threatened force, or violence" refers to § 924(c)(3)(A)'s requirement that a crime of violence have, "as an element, the use, attempted use, or threatened use of physical force." The Mendez court's characterization of Hobbs Act robbery as a crime of violence under § 924(c)(3)(A) has been treated as binding precedent in the Ninth Circuit. See, e.g., United States v. Howard , 650 Fed.Appx. 466, 468 (9th Cir. 2016) ...
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...2018 WL 2339072 (D. Nev. May 23, 2018). Some have expressly found that Mendez is still good law. See United States v. Lynch, 268 F. Supp. 3d 1099, 1108 (D. Mont. 2017) ("Its manner of analysis may have been incomplete or even incorrect, but it is not so clearly incomplete or incorrect that ......