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United States v. Lynch

United States District Court, D. Montana, Missoula Division

July 3, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
JOHN LANNY LYNCH, Defendant/Movant.

          ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY

          Donald W. Molloy United States District Court

         This 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.

         I. Preliminary Review

         The 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.

         A 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.

         II. Procedural Background

         Lynch 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).

         Following 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.

         Lynch 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, 150 (2012).

         Lynch 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. 228).

         On 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 considered.

         III. Legal Background

         A. 18 U.S.C. § 924(e)

         In 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 "residual" clause.

         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.

         Johnson did not address either subsection (i) or the first line of subsection (ii) in § 924(e)(2)(B). Those provisions remain valid.

         B. 18 U.S.C. § 924(c)(3)

         Lynch 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 felony and-
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the ...

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