United States District Court, W.D. Louisiana, Shreveport Division
HORNSBY MAGISTRATE JUDGE.
E. WALTER UNITED STATES DISTRICT JUDGE.
the Court is a Motion to Vacate, Set Aside, or Correct
Sentence pursuant to 28 U.S.C. § 2255 filed by the
Petitioner, Cedric J. Smith (“Smith”). [Rec. Doc.
265]. For the reasons assigned herein, Smith's motion is
February 20, 1992, Smith and another individual were charged
in a Superseding Indictment with five counts of bank robbery
in violation of 18 U.S.C. § 2113(a) and (d) (Counts 1,
3, 5, 7, and 9), and five counts of using a firearm during a
crime of violence in violation of 18 U.S.C. § 924(c)
(Counts 2, 4, 6, 8, and 10). [Rec. Doc. 1-49]. The charges
relate to a spree of armed bank robberies in and around
Shreveport, Louisiana in the spring of 1990. After a jury
trial, Smith was convicted on all counts. [Rec. Doc. 1-140].
The Court sentenced Smith to 108 months imprisonment for the
bank robbery charges (Counts 1, 3, 5, 7, and 9). [Rec. Doc.
1-175]. The Court sentenced Smith to 1020 months imprisonment
for the gun charges, with each count running consecutively
(Count 2 - 60 months, Count 4 - 240 months, Count 6 - 240
months, Count 8 - 240 months, and Count 10 - 240 months).
See Id. The sentences for the bank robberies and gun
charge were also ordered to run consecutively, for a total
sentence of 1128 months. See Id. Smith filed a
direct appeal of his conviction and sentence. [Rec. Doc.
1-197]. On July 7, 1993, the Fifth Circuit affirmed
Smith's conviction and sentence. [Rec. Doc. 1-212]. Smith
did not file a petition for writ of certiorari with the
United States Supreme Court.
April 4, 2016, Smith filed a document titled “Affidavit
for Entry of Affidavit of Truth: Newly Discovered
Evidence.” [Rec. Doc. 265]. Therein, Smith raises
evidentiary issues and asserts that the court violated his
due process rights through the use of certain witness
statements. See Id. Smith further argues that his
trial counsel was ineffective for allowing the stacking of
his sentences for violations of 18 U.S.C. § 2113(a) and
(d) and 18 U.S.C. § 924(c), which resulted in a sentence
of 1128 months rather than 108 to 135 months. See
Id. Two months later, Smith filed another document
titled “Attachment: Affidavit of Truth: Judicial Note -
Newly Discovered Evidence, ” wherein he argues that
bank robbery no longer qualifies as a “crime of
violence” under the force clause of 18 U.S.C. §
924(c)(3) because bank robbery may be accomplished by
intimidation only. [Rec. Doc. 268]. Smith also argues that
following the Supreme Court's decision in Johnson v.
United States, __ U.S. __, 135 S.Ct. 2551 (2015), his
firearm convictions are no longer proper under the residual
clause of section 924(c)(3). See Id. Smith filed a
third document titled “Affidavit of Truth Attachment
Motion to Dismiss Case in Request for Relief in light of
Johnson ”. [Rec. Doc. 275]. In this
document, Smith asserts that he is entitled to relief under
Johnson because under the “categorical
approach” set forth in United States v.
Descamps, 570 U.S. 254, 133 S.Ct. 2281 (2013), bank
robbery no longer qualifies as a crime of violence under 18
U.S.C. § 924(c). See id.
Court originally denied Smith's petition because it
interpreted the filing as a successive 2255 petition filed
without the prior authorization of the Fifth Circuit Court of
Appeals. [Rec. Doc. 279]. In response, Smith applied for
prior authorization to file a successive petition. Upon
review, the Fifth Circuit determined Smith's petition was
not successive and prior authorization was not required.
[Rec. Doc. 281]. Thereafter, this Court withdrew its previous
order and provided Smith with the opportunity to amend his
previously filed petition before considering the merits.
[Rec. Docs. 284, 285].
amended his petition, and attached an additional memorandum.
[Rec. Doc. 286]. Therein, Smith reasserts his previous
argument that his convictions and corresponding sentences
pursuant to 18 U.S.C. § 924(c) are improper in light of
Johnson. See Id. Smith also argues that his
section 924(c) convictions and sentences are improper because
“bank robbery is not categorically a crime a
violence.” See Id. The government has filed a
response, and this matter is now ripe for review. [Rec. Doc.
conviction and exhaustion or waiver of the right to appeal,
the court presumes that a defendant “stands fairly and
finally convicted.” United States v. Shaid,
937 F.2d 228, 231-32 (5th Cir. 1991) (quoting United
States v. Frady, 456 U.S. 152, 164, 102 S.Ct. 1584, 1592
(1982)). Relief under section 2255 is “reserved for
transgressions of constitutional rights and for a narrow
range of injuries that could not have been raised on direct
appeal and would, if condoned, result in a complete
miscarriage of justice.” United States v.
Vaughn, 955 F.2d 367, 368 (5th Cir. 1992).
motion filed under section 2255 is subject to a one-year
limitations period, running from the latest of the following
dates: (1) when the judgment became final; (2) when a
government-created impediment to filing the motion was
removed; (3) when the United States Supreme Court initially
recognized and made retroactively applicable the legal
predicate for the motion; or (4) when the petitioner could
have discovered, through due diligence, the factual predicate
for the motion. See 28 U.S.C. § 2255(f). A
judgment becomes final, under this section, when the
applicable period for seeking direct review of a conviction
has expired. See Clay v. United States, 537 U.S.
522, 527, 123 S.Ct. 1072, 1076 (2003). The limitations period
is not jurisdictional and is subject to equitable tolling.
See Parra-Martinez v. United States, No. 15-348,
2015 WL 9244611, at *3 (W.D. Tex. Dec. 16, 2015) (citing
Holland v. Florida, 560 U.S. 631, 645, 130 S.Ct.
2549, 2560 (2010)). Equitable tolling is only appropriate,
however, in “rare and exceptional circumstances”
and “is not intended for those who sleep on their
rights.” Parra-Martinez, 2015 WL 9244611, at
*3 (quoting Cousin v. Lensing, 310 F.3d 843, 848
(5th Cir. 2002); Fisher v. Johnson, 174 F.3d 710,
715 (5th Cir. 1999)).
argues that he is entitled to relief from his convictions
pursuant to 18 U.S.C. § 924(c) because his predicate
convictions, bank robberies in violation of 18 U.S.C. §
2113(a) and (d), no longer satisfy the definition of a
“crime of violence” pursuant to section 924(c)(3)
after the Supreme Court's decision in Johnson.
[Rec. Docs. 265, 268, 275, 286]. When a defendant is
convicted of certain crimes involving firearms, the court
applies the sentencing provisions set forth in 18 U.S.C.
§ 924. Under section 924(e), known as the Armed Career
Criminal Act (“ACCA”), a sentencing enhancement
applies when the defendant has at least three previous
convictions “for a violent felony or serious drug
offense.” See 18 U.S.C. § 924(e)(1). As
defined by 18 U.S.C. § 924(e)(2)(B), “the term
‘violent felony' means any crime […] 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) (emphasis added). The italicized
phrase is known as the residual clause of the ACCA. In
Johnson, made retroactively applicable in United
States v. Welch, ___ U.S. ___, 136 S.Ct. 1257 (2016),
the Supreme Court held that the residual clause of the ACCA
(italicized above) is unconstitutionally vague because it
invites arbitrary enforcement and fails to give fair notice
of the conduct it punishes. See Johnson, 135 S.Ct.
at 2557, 2563. Thus, a conviction based on the residual
clause of section 924(e)(2)(B)(ii) violates a defendant's
right to due process. See id.
was convicted of multiple counts of violating of 18 U.S.C.
§ 924(c) for using and carrying a firearm during and in
relation to a crime of violence (bank robbery). [Rec. Doc.
1-175]. Like the ACCA, section 924(c)(3) defines “crime
of violence” in two different ways, each under a
distinct section. Under section 924(c)(3)(A), known as the
elements clause, a crime of violence “has 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). Under section 924(c)(3)(B), referred to
as the residual clause, a crime of violence is a felony
“that by its nature, involves a substantial risk that
physical force against the person or property of another may
be used in the course of committing the offense.” 18
U.S.C. § 924(c)(3)(B). The Fifth Circuit has held that
the residual clause of 18 U.S.C. § 924(c)(3)(B) is
unconstitutionally vague in light of Johnson.
See United States v. Davis, 903 F.3d 483, 485-86
(5th Cir. 2018), cert. granted (Jan. 4, 2019) (No.
18-431). However, the elements clause of section 924(c)(3)(A)
remains constitutionally sound. See id.; United
States v. Bowens, 907 F.3d 347, 353 (5th Cir. 2018).
was charged and convicted with the commission of five
separate bank robberies in violation of 18 U.S.C. §
2113(a), which at the time of Smith's ...