Sexton v. United States, No. 2:2016cv00412 - Document 19 (W.D. Wash. 2018)
Court Description: ORDER denying Petitioner's 1 , 12 Motion to Vacate, Set Aside, or Correct Sentence; denying a certificate of appealability. Signed by Judge Robert S. Lasnik. (SWT)
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Sexton v. United States Doc. 19 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 JACK PERSHING SEXTON, Case No. C16-412RSL 10 Petitioner, 11 12 13 14 ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255 v. UNITED STATES OF AMERICA, Respondent. 15 16 This matter comes before the Court on petitioner Jack Pershing Sexton’s motion under 28 17 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Dkts. ## 1, 12. The Court has 18 considered the parties’ memoranda, the exhibits, and the remainder of the record. For the 19 reasons set forth below, the motion is DENIED. 20 21 I. BACKGROUND After an eight-day trial, a jury convicted petitioner of one count of conspiracy to commit 22 bank robbery (in violation of 18 U.S.C. § 371), three counts of armed bank robbery (18 U.S.C. 23 §§ 2113(a) and (d)), and three counts of use of a firearm during and in relation to a crime of 24 violence (18 U.S.C. § 924(c)(1)(A)(ii)). Case No. CR11-383RSL, Dkt. # 163. The presentence 25 report (PSR) concluded that petitioner was eligible for a sentencing enhancement as a “career 26 offender” under Sentencing Guideline § 4B1.1(a) because his instant and prior convictions of 27 armed bank robbery qualified as “crime[s] of violence.” CR Dkt. # 153 ¶ 46. The Guidelines 28 generated a recommended sentence of 262 to 327 months, to be served consecutive to a 684ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 - 1 Dockets.Justia.com 1 month mandatory minimum sentence for use of a firearm during and in relation to a crime of 2 violence. At sentencing, the Court sentenced petitioner to a total of 840 months’ imprisonment. 3 CR Dkt. # 163. Petitioner’s conviction and sentence were affirmed on appeal. See United States 4 v. Sexton, 586 F. App’x 304 (9th Cir. 2014). 5 On March 21, 2016, petitioner filed a pro se motion under 28 U.S.C. § 2255, challenging 6 his conviction and sentence on multiple grounds. The Court later entered a sua sponte order 7 appointing counsel to assist petitioner with a § 2255 claim pursuant to the Supreme Court’s 8 decision in United States v. Johnson, 135 S. Ct. 2551 (2015). Counsel filed an amended § 2255 9 motion on petitioner’s Johnson claim. Dkt. # 12. The Court then stayed resolution of petitioner’s 10 motion pending the Ninth Circuit’s decision in United States v. Watson, 881 F.3d 782 (9th Cir. 11 2018) (per curiam), which considered whether armed bank robbery is a “crime of violence” for 12 purposes of 18 U.S.C. § 924(c). 13 II. DISCUSSION 14 A. Johnson Claim 15 Section 924(c) imposes a mandatory consecutive term of imprisonment for using or 16 carrying a firearm “during and in relation to a crime of violence.” 18 U.S.C. § 924(c)(1)(A). The 17 statute provides two definitions of a crime of violence. Under § 924(c)’s so-called “force 18 clause,” a crime of violence is a felony that “has as an element the use, attempted use, or 19 threatened use of physical force against the person or property of another.” Id. § 924(c)(3)(A). 20 Under § 924(c)’s “residual clause,” a crime of violence is a felony “that by its nature, involves a 21 substantial risk that physical force against the person or property of another may be used in the 22 course of committing the offense.” Id. § 924(c)(3)(B). 23 Here, petitioner argues that armed bank robbery does not satisfy either definition of a 24 crime of violence. He first contends that the residual clause is unconstitutionally vague under 25 Johnson, which invalidated a similar clause in the Armed Career Criminal Act, id. 26 § 924(e)(2)(B), and Welch v. United States, 136 S. Ct. 1257 (2016), which found Johnson 27 retroactive on collateral review. Petitioner thus argues that the residual clause cannot support his 28 conviction and sentence under § 924(c). Additionally, petitioner maintains that armed bank ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 - 2 1 robbery does not constitute a crime of violence under the force clause, because one could 2 theoretically be convicted of armed bank robbery without intentionally using, threatening to use, 3 or attempting to use physical force. 4 The Ninth Circuit’s decision in Watson forecloses petitioner’s claim. Like petitioner, the 5 Watson petitioners argued that their convictions for using a firearm during a crime of violence 6 were unlawful because the predicate offense—armed bank robbery (18 U.S.C. § 2113)—did not 7 qualify as a crime of violence for purposes of § 924(c). The court squarely rejected that 8 argument, without reaching the residual clause’s constitutionality. Even the least violent form of 9 bank robbery—bank robbery by intimidation—“requires at least an implicit threat to use the 10 type of violent physical force necessary to” satisfy the force clause. Watson, 881 F.3d at 785 11 (quoting United States v. Gutierrez, 876 F.3d 1254, 1257 (9th Cir. 2017) (per curiam)). Bank 12 robbery by intimidation also meets the mens rea requirement for a crime of violence. Id. 13 Therefore, bank robbery under § 2113(a) invariably qualifies as a crime of violence for purposes 14 of § 924(c). Because an armed bank robbery conviction under §§ 2113(a) and (d) “cannot be 15 based on conduct that involves less force than an unarmed bank robbery requires,” armed bank 16 robbery also constitutes a crime of violence under § 924(c). Id. at 786. 17 Watson resolves petitioner’s Johnson claim. Petitioner’s conviction for armed bank 18 robbery is a proper basis for his conviction and sentence under § 924(c). 19 B. Sentencing Guidelines 20 Petitioner also relies on Johnson to dispute the Court’s finding that he is a career offender 21 under the Sentencing Guidelines. The Guidelines provide that a defendant is a career offender if, 22 among other factors, “the defendant has at least two prior felony convictions of . . . a crime of 23 violence” and “the instant offense of conviction is a felony that is . . . a crime of violence.” 24 U.S.S.G. § 4B1.1(a). Like § 924(c), the Guidelines provide two definitions of a crime of 25 violence. The first, which mirrors the force clause of § 924(c), defines a crime of violence as a 26 felony that “has as an element the use, attempted use, or threatened use of physical force against 27 the person of another.” U.S.S.G. § 4B1.2(a)(1). The second definition, at the time petitioner was 28 sentenced, was nearly identical to the residual clause invalidated in Johnson. See id. ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 - 3 1 § 4B1.2(a)(2) (2012). According to petitioner, armed bank robbery is not a crime of violence 2 under the Guidelines, because Johnson renders § 4B1.2(a)’s residual clause unconstitutionally 3 vague. 4 Petitioner’s Guidelines challenge fails. Under longstanding Ninth Circuit precedent, 5 petitioner’s conviction of armed bank robbery qualifies as a “crime of violence” for purposes of 6 § 4B1.2(a)’s force clause. United States v. Selfa, 918 F.2d 749, 751 (9th Cir. 1990). Moreover, 7 the Supreme Court has expressly foreclosed the very Johnson claim petitioner raises. Beckles v. 8 United States, 137 S. Ct. 886 (2017). “Because they merely guide the district courts’ discretion,” 9 the Beckles Court explained, the Guidelines, including § 4B1.2(a)’s residual clause, are not 10 subject to vagueness challenges under the Due Process Clause. Id. at 894. Accordingly, the 11 Court correctly accepted the PSR’s conclusion that petitioner is a career offender under the 12 Guidelines. 13 C. Ineffective Assistance of Counsel 14 In his pro se § 2255 motion, petitioner asserts that he was deprived of his Sixth 15 Amendment right to effective assistance of counsel because his attorney failed to interview the 16 government’s expert witnesses before trial. Additionally, petitioner argues that he was denied 17 effective assistance of counsel because his attorney declined to call petitioner’s primary care 18 physician as a witness at trial. 19 Claims of ineffective assistance of counsel are evaluated under the two-prong test set 20 forth in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a defendant must 21 prove that (1) counsel’s performance was deficient, and (2) counsel’s deficient performance 22 prejudiced defendant. Id. at 687. With respect to Strickland’s first prong, petitioner must show 23 that counsel’s performance fell below an objective standard of reasonableness. Id. at 688. 24 Judicial scrutiny of counsel’s performance must be highly deferential. Id. at 689. There is a 25 strong presumption that counsel’s performance fell within the wide range of reasonably effective 26 assistance. Id. Strickland’s second prong requires a showing of actual prejudice related to 27 counsel’s performance. To establish prejudice, petitioner “must show that there is a reasonable 28 probability that, but for counsel’s unprofessional errors, the result of the proceeding would have ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 - 4 1 been different.” Id. at 694. “A reasonable probability is a probability sufficient to undermine 2 confidence in the outcome.” Id. 3 Petitioner cannot show deficient performance or prejudice with respect to counsel’s 4 choice not to conduct pretrial interviews with the government’s experts. The government called 5 two expert witnesses: one expert in historical cell-site identification, who testified that cell-site 6 records put petitioner’s co-defendant near the scene of one of the bank robberies; and one DNA 7 examiner, who testified to DNA evidence that linked petitioner and his co-defendant to the 8 robberies. Petitioner asserts that his attorney “[did] not know[] what the expert witnesses would 9 testify too [sic]” at trial. Dkt. # 1 at 5. The record suggests otherwise. The government provided 10 defense counsel notice of the experts’ identities and conclusions, and in its trial brief 11 summarized its experts’ anticipated testimony. See CR Dkt. # 15 at 11. Indeed, petitioner’s 12 counsel appeared well aware of the testimony the government’s experts planned to offer: he 13 sought to exclude specific aspects of the DNA examiner’s anticipated testimony, CR Dkt. # 120 14 at 5, and at trial called a rebuttal expert in DNA analysis. There is no reasonable probability that 15 the outcome of the trial would have been different had defense counsel conducted pretrial 16 interviews with the government’s experts. 17 Similarly, petitioner cannot show deficient performance or prejudice with respect to 18 counsel’s decision to refrain from calling petitioner’s primary care physician as a witness at 19 trial. Petitioner asserts that his physician would have testified to petitioner’s physical inability to 20 commit the bank robberies in the manner the government alleged. Petitioner makes no showing 21 that his physician would have provided such testimony, and fails to overcome the presumption 22 that the challenged decision was sound trial strategy. See Strickland, 466 U.S. at 689. Moreover, 23 at trial defense counsel pressed the very argument petitioner says his physician’s testimony 24 would have supported. Counsel introduced a page of petitioner’s medical records to show that 25 petitioner has degenerative disc disease. He also suggested that petitioner was physically 26 incapable of jumping onto a bank counter and running from the scene, as the government 27 alleged. The jury convicted petitioner nonetheless. There is no reasonable probability that the 28 ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 - 5 1 outcome of the trial, which produced overwhelming evidence of petitioner’s guilt, would have 2 been different had petitioner’s physician testified. 3 Accordingly, the Court finds that petitioner was not deprived of effective assistance of 4 counsel with respect to defense counsel’s decisions regarding the physician or the pretrial expert 5 interviews. 6 D. Double Jeopardy Claim 7 Petitioner also asserts that the government violated the double jeopardy clause of the 8 Constitution by prosecuting him for both armed bank robbery under 18 U.S.C. §§ 2113(a) and 9 (d) and using a firearm during and in relation to a crime of violence under 18 U.S.C. § 924(c). 10 Relatedly, petitioner claims that he received ineffective assistance of counsel because his 11 attorney failed to raise the double jeopardy claim on appeal. 12 The Ninth Circuit has “repeatedly rejected” the very double jeopardy claim petitioner 13 raises. United States v. Michlin, 34 F.3d 896, 900–01 (1994) (no double jeopardy violation 14 where government charged petitioner with armed bank robbery and carrying a firearm during a 15 crime of violence). Counsel’s choice not to put forth a meritless argument does not constitute 16 ineffective assistance. Accordingly, petitioner’s double jeopardy claim fails, as does his related 17 ineffective-assistance claim. 1 III. 18 19 CONCLUSION For the foregoing reasons, the Court finds that petitioner has not demonstrated that his 20 sentence should be vacated, set aside, or corrected. His petition, Dkts. ## 1, 12, is accordingly 21 DENIED. The Court further finds that no evidentiary hearing is required because the record 22 conclusively shows petitioner is not entitled to relief. See 28 U.S.C. § 2255(b). Likewise, 23 petitioner has not substantially shown a denial of constitutional rights, and the Court concludes 24 no certificate of appealability should issue. See id. § 2253(c)(2). 25 26 1 Finally, in his pro se § 2255 motion, petitioner asserts a claim stemming from the jury being 27 “out a long time.” Petitioner suggests that the length of jury deliberations shows that the errors alleged in his petition were not “harmless.” Given the conclusions above, the Court likewise rejects this derivative 28 claim. ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 - 6 1 For the foregoing reasons, the Court ORDERS: 2 (1) Petitioner’s motion, Dkts. ## 1, 12, is hereby DENIED; and 3 (2) Petitioner is DENIED a certificate of appealability under 28 U.S.C. § 2253. 4 DATED this 22nd day of May, 2018. 5 6 7 A 8 Robert S. Lasnik United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 - 7
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