Opinion
No. CV 16-04588-PHX-NVW (MHB) No. CR-01-01110-1-PHX-NVW
08-16-2018
Nicholas John Rossi, Jr., Movant/Defendant, v. United States of America, Respondent/Plaintiff.
REPORT AND RECOMMENDATION
TO THE HONORABLE UNITED STATES DISTRICT JUDGE NEIL V. WAKE.
On February 16, 2017, the Ninth Circuit Court of Appeals granted Movant's application to file a second or successive 28 U.S.C. § 2255 motion and transferred his case to the District Court, as Movant had made a prima facie showing for relief under Johnson v. United States, 135 S. Ct. 2551 (2015.) (CVDoc. 3.) Movant was convicted after a jury trial of one count of Carjacking and aid and abet, in violation of 18 U.S.C. §§ 2119 and 2, and Use of a Firearm in a Crime of Violence, in violation of 18 U.S.C. § 924(c)(1)(A). (CRDocs. 87, 122.) On March 5, 2005, Movant was sentenced to a total of 210 months' imprisonment. (CRDoc. 122.) Movant's convictions were affirmed on direct appeal. United States v. Julio Riccard Price, et al., 84 Fed. Appx. 917 (9th Cir. 2003) (CRDoc. 169). Movant also filed a previous § 2255 motion, raising various grounds for relief, which was denied by the Court. (CRDocs. 170, 178.)
Documents in the § 2255 matter will be referred to as "CVDoc.," and documents in the underlying criminal matter will be referred to as "CRDoc." --------
In Movant's current § 2255 motion, he asserts that his conviction and sentence under 18 U.S.C. § 924(c) are invalid pursuant to Johnson. (CRDoc. 208; CVDoc. 3 at 12-21.) In Johnson, the Supreme Court declared that the residual clause of § 924(e), under the Armed Career Criminal Act, was unconstitutionally vague. Movant was sentenced pursuant to § 924(c) which defines "crime of violence," and contains a "force clause," and a "residual clause." § 924(c)(3)(A) and (B). Movant asserts that the offense of carjacking does not fall under the "force clause," as it does not have "as an element the use, attempted use, or threatened use of physical force against the person or property of another,"18 U.S.C. § 924(c)(3)(A), and therefore must fall under the residual clause. And, since that clause is similarly worded to the residual clause of § 924(e), the holding of Johnson renders that clause also unconstitutionally vague.
This Court entered a stay of this matter on April 26, 2018, "pending the Ninth Circuit's decision in United States v. Begay, No. 14-10080." (CVDoc. 10.) On July 13, 2018, Respondent filed a Motion to Vacate Stay and Motion to Dismiss Movant's § 2255 motion. (CVDoc. 13.) Respondent moves to lift the stay, as a continued stay to await a decision by the Ninth Circuit in Begay is unnecessary, as there is now binding Ninth Circuit precedent, United States v. Gutierrez, 876 F.3d 1254 (9th Cir. 2017), directly addressing Movant's claim. (CVDoc. 15.)
In Gutierrez, the Ninth Circuit held that the crime of carjacking under 18 U.S.C. § 2119 is categorically a crime of violence under the "force clause" of § 924(c). 876 F.3d at 1257. Whether the offense is committed "by force and violence," or by "intimidation," it meets the Johnson standard of "force capable of causing physical pain or injury to another person." Id. at 1256. Because "carjacking constitutes a crime of violence under the force clause," the Ninth Circuit confirmed that there is "no need to address the residual clause." Id. The Court noted that "each of the other circuits to confront the question after Johnson has concluded that carjacking qualifies as a crime of violence." Id. \\\
Movant has not responded to Respondent's motion, despite being given the opportunity to do so.
In light of the fact that there is no basis for continuing the stay in this matter, and in light of Ninth Circuit precedent foreclosing Movant's claim, this Court will recommend that the stay be lifted and Movant's § 2255 motion be denied and dismissed with prejudice.
IT IS THEREFORE RECOMMENDED that Movant's Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. §2255, (CRDoc. 208; CVDoc. 3 at 12-21.), be denied and dismissed with prejudice.
IT IS FURTHER RECOMMENDED that the Court deny a Certificate of Appealability and leave to proceed in forma pauperis on appeal because Movant has not made a substantial showing of the denial of a constitutional right.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed seventeen (17) pages in length. Failure timely to file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure timely to file objections to any factual determinations of the Magistrate Judge will be considered a \\\ \\\ \\\ waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule 72, Federal Rules of Civil Procedure.
DATED this 16th day of August, 2018.
/s/_________
Michelle H. Bums
United States Magistrate Judge