United States District Court, D. Montana, Missoula Division
ORDER DENYING § 2255 MOTION AND GRANTING
CERTIFICATE OF APPEALABILITY
W. Molloy United States District Court
case comes before the Court on Defendant Malarkey's
motion to vacate, set aside, or correct the sentence under 28
U.S.C. § 2255. Malarkey is a federal prisoner proceeding
11, 2012, Malarkey pled guilty to one count of robbery
involving controlled substances, a violation of 18 U.S.C.
§ 2118(c)(1) (Count 1), and one count of using a firearm
during and in relation to the Count 1 robbery, a violation of
18 U.S.C. § 924(c)(1)(A) (Count 2). Plea Agreement (Doc.
38) at 3-4 ¶ 4. Although the Indictment did not use the
word "brandishes, " it cited 18 U.S.C. §
924(c)(1)(A)(ii), and the caption set the minimum penalty for
Count 2 at seven years. See Indictment (Doc. 1) at 1
(caption), 3. In addition, Malarkey expressly admitted the
element of brandishing the firearm. See Change of
Plea Tr. (Doc. 58) at 3:7-5:5, 34:19-35:1, 37:17-38:23,
October 12, 2012, Malarkey was sentenced to serve 100 months
on Count 1 and a consecutive term of 84 months on Count 2.
Minutes (Doc. 45); Judgment (Doc. 46) at 1 (citing 18 U.S.C.
§ 924(c)(1)(A)(ii)); id. at 2-3. On January 28,
2013, Malarkey voluntarily dismissed his appeal. See
Order (Doc. 60) at 1, United States v. Malarkey, No.
12-30325 (9th Cir. Jan. 28, 2013).
now seeks relief under the United States Supreme Court's
recent decision in Johnsonv. United States, __ U.S.
__, 135 S.Ct.2551 (2015). See also Welchv. United
States, __ U.S. __, 136 S.Ct. 1257, 1265 (2016) (holding
that Johnson applies to cases already final when it
United States' procedural defenses, see Resp. to
§ 2255 Mot. (Doc. 63) at 2-6, stand or fall with the
same question as the merits of the § 2255 motion- i.e.,
whether Johnson applies to Malarkey's motion. If
Johnson does not support relief, the United States
does not need its procedural defenses to carry any water. The
question is whether Johnson supports relief for
18 U.S.C. § 924(e)
Johnson, 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:
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another[.]
18 U.S.C. § 924(e)(2)(B). Johnson discussed
only the italicized clause, commonly called 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 by sentencing judges. 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
U.S. at 2555-60, 2563. Johnson did not ...