United States District Court, N.D. Texas, Dallas Division
DARREN G. LEWIS, Movant,
UNITED STATES OF AMERICA, Respondent.
AMENDED ORDER ACCEPTING AMENDED FINDINGS, CONCLUSIONS
AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE, AND
DENYING A CERTIFICATE OF APPEALABILITY
J. BOYLE, UNITED STATES DISTRICT JUDGE.
United States Magistrate Judge made amended findings,
conclusions and a recommendation in this case. Movant has
filed an objection. The District Court has made a de
novo review of those portions of the findings,
conclusions and recommendation to which Movant objects.
objection, Movant argues that Johnson v. United
States, 135 S.Ct. 2551 (2015), reset his statute of
limitations under 28 U.S.C. § 2255(f)(3). The District
Court rejects that argument for the reasons set forth in the
amended findings, conclusions and recommendation.
Movant's Section 2255 motion is untimely.
also requests, that if the District Court finds his Section
2255 motion untimely, it stay these proceedings until the
Supreme Court announces its decision in Lynch v.
Dimaya, 137 S.Ct. 31 (2016) (granting certiorari).
Movant asserts that Dimaya will decide whether 18
U.S.C. § 924(c)(3)(B)'s residual clause is
unconstitutional in light of Johnson. However,
Dimaya “does not involve §
924(c)(3)(B).” Byrd v. United States, No.
16-6286, 2017 WL 3613861, at *2 (6th Cir. May 4, 2017).
Rather, “in Dimaya, the narrow issue is
whether the Supreme Court's decision in Johnson
applies to the residual clause, not the elements clause, of
the ‘crime of violence' definition in 18 U.S.C.
§ 16(b).” Bryant v. United States, CV
116-025, 2017 WL 1591884, at *2 (S.D. Ga. May 1, 2017);
see also Dimaya v. Lynch, 803 F.3d 1110, 1120 (9th
Cir. 2015) (holding that Section 16(b) of the Immigration and
Nationality Act is unconstitutionally vague), cert.
granted, 137 S.Ct. 31.
even if Dimaya does invalidate Section
924(c)(3)(B)'s residual clause, that holding would not
impact Movant's Section 924(c) conviction. That is
because his Section 924(c) conviction is predicated upon a
Hobbs Act robbery, which qualifies as a crime of violence
under Section 924(c)(3)(A)'s force clause definition, not
the residual clause found in Section 924(c)(3)(B). See
Buck v. United States, 847 F.3d 267, 274-75 (5th Cir.
2017); see also Hobbs v. United States,
3:16-CV-1139-O, 2017 WL 194291, at * 4 (N.D. Tex. Jan. 18,
2017) (“Indeed, the definition of a Hobbs Act robbery
fits under Section 924(c)'s force clause, not its
residual clause.”). For these reasons, Dimaya
will not impact these proceedings, and the Court will not
stay this case until Dimaya is announced. See
United States v. Johnson, Civil Case No. 16-12322, 2017
WL 3531397 (E.D. Mich. Aug. 17, 2017) (declining to stay
Section 2255 proceedings pending Dimaya because
Dimaya had no bearing on the movant's conviction
under Section 924(c)(3)(A)).
Movant's objections are OVERRULED and
his alternative request for a stay is
DENIED. The District Court
ACCEPTS the Amended Findings, Conclusions
and Recommendation of the United States Magistrate Judge.
the record in this case and pursuant to Federal Rule of
Appellate Procedure 22(b), Rule 11(a) of the Rules Governing
§§ 2254 and 2255 proceedings, and 28 U.S.C. §
2253(c), the Court DENIES a certificate of
appealability. The Court adopts and incorporates by reference
the Magistrate Judge's Amended Findings, Conclusions and
Recommendation filed in this case in support of its finding
that the movant has failed to show (1) that reasonable
jurists would find this Court's “assessment of the
constitutional claims debatable or wrong, ” or (2) that
reasonable jurists would find “it debatable whether the
petition states a valid claim of the denial of a
constitutional right” and “debatable whether
[this Court] was correct in its procedural ruling.”
Slack v. McDaniel, 529 U.S. 473, 484
event Movant will file a notice of appeal, the court notes
movant will proceed in forma pauperis on appeal.
( ) the
movant will need to pay the $505.00 appellate filing fee or
submit a motion to proceed in forma pauperis.
Rule 11 of the Rules Governing
§§ 2254 and 2255 Cases, as amended effective on
December 1, 2009, ...