Trubey v. United States of America

Middle District of Florida, flmd-8:2016-cv-01737

ORDER denying {{20}} Motion for Certificate of Appealability. Signed by Judge Susan C Bucklew on 2/3/2017. (JD)

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PageID 97 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION STEVEN CHRISTOPHER TRUBY Petitioner, v. CASE NO. 8:16-cv-1737-T-24TBM UNITED STATES OF AMERICA, / ORDER Petitioner Steven Christopher Truby, represented by counsel, filed an Application for Certificate of Appealability. (Doc. 20). 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 98 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 conviction for attempted bank robbery qualifies as a crime of violence under §924(c)'s use-of-force clause. See In re Sams, 830 F3d 1234(11th Cir. 2016) (holding conviction for bank robbery by force, violence and intimidation was a crime of violence under 924(c)'s use-of-force clause); In re Hines, 824 F. 3d 1334 (11th Cir. 2016) (holding armed bank robbery is a crime of violence under 924(c)'s use-of -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-