Torres v. United States of America

Middle District of Florida, flmd-8:2016-cv-01508

ORDER denying {{23}} Motion for Certificate of Appealability. Signed by Judge Susan C Bucklew on 2/3/2017. (JD)

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PageID 117 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION MICHAEL ANTONIO TORRES Petitioner, v. CASE NO. 8:16-cv-1508-T-24TGW UNITED STATES OF AMERICA, Respondent. / ORDER Petitioner Joshua Michael Wilkes, represented by counsel, filed an Application for Certificate of Appealability. (Doc. 23). Upon consideration of Petitioner's Motion to Vacate pursuant to 28 U.S.C. § 2255 as well as Petitioner's underlying criminal case, Petitioner's Application is denied because Petitioner has not made a showing of the denial of a constitutional right under 28 U.S.C. § 2253(c)(2). Petitioner seeks to extend the holding in Johnson v. United States,135 S. Ct. 2551 (2015), to 18 U.S.C. § 924(c) on collateral review. Johnson affords Petitioner no collateral relief with regard to his § 924(c) conviction because Johnson did not address the statute under which Petitioner was convicted. 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). However, even if PageID 118 reasonable jurists could find it debatable under Slack v. McDaniel, 529 U.S. 473, 478 (2000), as to whether Johnson extends to the residual clause under 18 U.S.C. § 924(c), Petitioner's convictions for a Hobbs Act robbery and carjacking qualify as crimes of violence under § 924(c)'s use-of force clause. See In re Fleur, 824 F.3d 1337, 1341 (11th Cir. 2016) (holding Hobbs Act robbery offense met use-of-force clause of statutory definition of crime of violence); In re Smith 829 F.3d 1276 (11th Cir. 2016)(concluding that carjacking in violation of § 2119 satisfies § 924(c)'s force clause). ACCORDINGLY, for the reasons expressed, Petitioner's Application for Certificate of Appealability is denied. DONE AND ORDERED at Tampa, Florida, on February 3, 2017. Copies to: Counsel of Record -2-