Opinion
CASE NO. 8:16-cv-1508-T-24TGW
02-03-2017
MICHAEL ANTONIO TORRES Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER
Petitioner Joshua Michael Wilkes, represented by counsel, filed an Application for Certificate of Appealability. (Doc. 23). 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 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 convictions for a Hobbs Act robbery and carjacking qualify as crimes of violence under § 924(c)'s use-of force clause. See In re Fleur, 824 F.3d 1337, 1341 (11 Cir. 2016) (holding Hobbs Act robbery offense met use-of-force clause of statutory definition of crime of violence); In re Smith 829 F.3d 1276 (11 Cir. 2016)(concluding that carjacking in violation of § 2119 satisfies § 924(c)'s 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.
/s/_________
SUSAN C. BUCKLEW
United States District Judge Copies to: Counsel of Record