United States District Court, D. Oregon, Portland Division
J. Williams UNITED STATES ATTORNEY District of Oregon,
Suzanne B. Miles ASSISTANT UNITED STATES ATTORNEY, Attorneys
Elizabeth G. Daily ASSISTANT FEDERAL PUBLIC DEFENDER, Stephen
R. Sady CHIEF DEPUTY FEDERAL DEFENDER, Attorneys for
OPINION & ORDER
A. Hernandez United States District Judge.
28 U.S.C. § 2255 motion, Defendant Michael Baird Johnson
challenges his conviction for using a firearm in relation to
a crime of violence under 18 U.S.C. § 924(c) and seeks
resentencing as to his remaining convictions. I deny the
31, 2007, a jury found Defendant guilty of three charges: (1)
Count 1: armed bank robbery in violation of 18 U.S.C. §
2113; (2) Count 2: using and carrying a firearm during and in
relation to the crime of armed bank robbery in violation of
18 U.S.C. § 924(c)(1); and (3) Count 3: felon in
possession of a firearm in violation of 18 U.S.C. §
922(g). July 31, 2007 Jury Verdict, ECF 78. Defendant
received consecutive life sentences on Courts 1 and 2.
Judgment, ECF 87. He also received a life sentence on Count
3, to be served concurrently to the life sentence imposed on
Count 1. Id. The life sentences on Counts 1 and 2
were imposed pursuant to 18 U.S.C. § 3559(c)(1)(A)(ii).
Statement of Reasons, ECF 88. The life sentence on Count 3
was imposed under § 924(e).
Supplemental Statement of Reasons, Judge Brown found that in
1966 and again in 1980, Defendant had been previously
convicted of armed bank robbery and unarmed bank robbery in
violation of 18 U.S.C. § 2113. Supp'l Statement of
Reasons 3-4, ECF 89. She also found that he had been
convicted of fourteen different felonies in California in
1987. Id. As a result, Judge Brown determined that
these prior convictions qualified as violent felonies under
18 U.S.C. § 3559(c). Id. at 6-7. Accordingly,
mandatory life sentences were required for Counts 1 and 2.
Id. Additionally, Judge Brown explained, §
924(c)(1)(D)(ii) required that these life sentences be
consecutive, not concurrent. Id. Finally, on Count
3, § 922(g)(1) triggered a mandatory minimum of fifteen
years under § 924(e) because, Judge Brown found,
Defendant "easily satisfie[d]" the criteria of
having three violent felonies that were committed on
occasions different from one another. Id. at 7-8.
She then imposed the concurrent life sentence on Count 3.
direct appeal was denied. United States v. Jordan,
303 Fed.Appx. 439 (9th Cir. 2008). Defendant then filed a 28
U.S.C. § 2255 motion which was denied on March 11, 2011.
ECF 134. In May 2017, after receiving authorization from the
Ninth Circuit to file a second or successive 28 U.S.C. §
2255 motion based on Johnson v. United States, 135
S.Ct. 2551 (2015), Defendant filed the instant motion. ECF
149; see also ECF 149-1 (Ninth Cir. Order). Counsel
was promptly appointed and after some delay, the motion was
fully briefed in May 2019.
§ 2255, a federal prisoner in custody may move the
sentencing court to vacate, set aside, or correct a sentence
on the basis that the sentence violates the Constitution or
the laws of the United States. 28 U.S.C. § 2255(a);
United States v. Withers, 638 F.3d 1055, 1062 (9th
Cir. 2011) (citing Davis v. United States, 417 U.S.
333 (1974)). The petitioner must demonstrate that an error of
constitutional magnitude had a substantial and injurious
effect or influence on the guilty plea or the jury's
verdict. Brecht v. Abrahamson, 507 U.S. 619, 637
(1993); see also United States v. Montalvo,
331 F.3d 1052, 1058 (9th Cir. 2003) ("We hold now that
Brecht's harmless error standard applies to
habeas cases under section 2255, just as it does to those
under section 2254."). A hearing is unnecessary in cases
where "the files and records . . . conclusively show
that the prisoner is entitled to no relief[.]" 28 U.S.C.
§ 2255(b). Here, because there are no facts in dispute
and the questions presented raise solely legal issues, no
hearing is required.
argues that his conviction under § 924(c) must be
vacated because his armed bank robbery conviction under 18
U.S.C. § 2113(a) & (d) is not a "crime of
violence" as that phrase is defined in § 924(c)(3).
For the same reason, and based on his contention that none of
the 1987 California state convictions are violent felonies,
he further argues that he should be resentenced on the other
924(c)(1)(A) provides a mandatory additional sentence for
"any person who, during and in relation to any crime of
violence . . . for which the person may be prosecuted in a
court of the United States, uses or carries a firearm, or
who, in furtherance of any such crime, possesses a
firearm[.]" 18 U.S.C. § 924(c)(1)(A).
Defendant's Count 2 conviction was based ...