Barriera-Vera v. USA

Middle District of Florida, flmd-8:2016-cv-02187

ORDER granting {{7}} motion to dismiss; dismissing {{1}} Motion to vacate/set aside/correct sentence (2255). The Clerk is directed to enter judgment in favor of the Government and to close the case. Signed by Judge Susan C Bucklew on 11/4/2016. (JD)

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PageID 73 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION JOSE BARRIERA-VERA Petitioner, v. CASE NO. 8:16-cv-2187-T-24TBM 8:06-cr-396-T-24 TBM UNITED STATES OF AMERICA, Respondent. / ORDER Petitioner Jose Barriera-Vera, represented by counsel, filed a Motion to Vacate pursuant to 28 U.S.C. § 2255 on July 29, 2016. The United States filed a motion to dismiss the § 2255 motion as untimely, to which Petitioner filed a response. With the Court's permission, the United States filed a reply to Petitioner's response. Petitioner filed notice of supplemental authority regarding its response in opposition to the United States' motion to dismiss. After due consideration, the Court finds Petitioner's motion should be dismissed as untimely. Petitioner was convicted by a jury of bank robbery in violation of 18 U.S.C. § 2113(a) and (d) (count one), carrying and using a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (count two), attempted bank robbery in violation of 18 U.S.C. § 2113(a) and (d) (count three), and carrying and PageID 74 attempting to use a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (count four). The Court sentenced Petitioner to a term of imprisonment of time served on counts one and three, followed by 84 months as to count two and 300 months consecutive as to count four on April 22, 2009. (This sentence followed a reversal of the Court's granting a judgment of acquittal not withstanding the jury's verdict as to counts three and four, and the reversal of the Court's order and reinstatement of the jury's verdict as to those counts by the Eleventh Circuit.) Petitioner now seeks relief under the auspices of § 2255. Because this is a second § 2255 motion, Petitioner filed an application to file a successive § 2255 motion. The Eleventh Circuit granted the application to the extent Petitioner wished to challenge his conviction on count four, but the Eleventh Circuit denied the petition to the extent Petitioner wished to challenge his conviction on count two. Petitioner argues that because the Armed Career Criminal Act's ("ACCA") residual clause is unconstitutionally vague, a similarly worded statute, 18 U.S.C. § 924(c)(1)(3)(B), is also unconstitutionally vague, and his sentence on count four should be set aside. Petitioner's claim for relief rests on the decision in Johnson v. United States, 135 S. Ct. 2551 (2015), in which the Supreme Court held that the residual cause of the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague, a decision that was made retroactive on collateral review by the Supreme Court in Welch v. United States, 136 S. Ct. 1257 (2016). -2- PageID 75 Petitioner seeks to extend the holdings in Johnson and Welch to 18 U.S.C. § 924(c) on collateral review. However, Petitioner's motion is untimely in that his conviction has been final for more than one year, and he cannot satisfy the exception to the one year statute of limitations under 28 U.S.C. § 2255(f)(3). Johnson affords Petitioner no collateral relief with regard to his § 924(c) conviction on count four. First, Johnson did not address the statute under which Petitioner was convicted. Instead, Johnson ruled on the constitutionality of the residual clause of the ACCA, § 924(e)(2)(B)(ii). The Supreme Court has never held that any part of § 924(c) is unconstitutionally vague. Nor has the Eleventh Circuit Court of Appeals extended Johnson's vagueness determination to § 924(c). See In re Pinder, 824 F.3d 977, 978 (11th Cir. 2016)("Our Court hasn't decided if Johnson applies to § 924(c)(3)(B)."). Second, attempted armed bank robbery as charged in count three is a crime of violence under the elements prong of § 924(c)(3)(A) in that it has as an element the use, attempted use, or threatened use of physical force against the person of another. The Court finds the case of In re Hines instructive in this matter. See In re Hines, 824 F.3d 1334, 1337 (11th Cir. 2016) (concluding that a companion conviction for armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d), clearly qualifies as a crime of violence under the § 924(c)(3)(A) use of force clause without regard to the § 924(c)(3)(B) residual clause). Therefore, even if the Court should decide that Johnson extends to the residual clause of 18 U.S.C. § 924(c)(3)(B), it would still provide Petitioner with no relief. -3- PageID 76 ACCORDINGLY, for the reasons expressed, it is ORDERED AND ADJUDGED that: (1) The Government's motion to dismiss Petitioner's § 2255 motion as untimely (CV-Doc. 7) is GRANTED. (2) Petitioner's Motion to Vacate (CV-Doc. 1; CR-Doc. 112) is DISMISSED. (3) The Clerk is directed to enter judgment for the United States in the civil case and then to CLOSE the civil case. DONE AND ORDERED at Tampa, Florida, on November 4, 2016. Copies to: Counsel of Record -4-