United States District Court, D. Montana, Missoula Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
W. Molloy United States District Court
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 (2015), which was made retroactive to final
judgments by Welch v. United States, U.S., 136 S.Ct.
1257 (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.
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.
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.
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).
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.
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 (2006). His conviction became final
on that day. See Gonzalez v. Thaler, 565 U.S. 134,
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.
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
U.S.C. § 924(e)
Johnson v. United States, __ U.S. __, 135 S.Ct. 2551
(2015) ("Johnson" or "Johnson
IF), 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. 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.
did not address either subsection (i) or the first line of
subsection (ii) in § 924(e)(2)(B). Those provisions
U.S.C. § 924(c)(3)
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:
(3) For purposes of this subsection [§ 924(c)] the term
"crime of violence" means an offense that is a
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of
(B) that by its nature, involves a substantial risk that
physical force against the person or property of another may
be used in the ...