USA v. Piers et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
WILLIAM PIERS,
Defendant.
Case No. 3:00-cr-00104-SLG
ORDER RE SECTION 2255 PETITION
Before the Court is Defendant William Piers’s Motion to Vacate, Set Aside or
Correct Convictions and Sentence Pursuant to 28 U.S.C. § 2255, filed on February 23,
2017 at Docket 293.1 The Government responded at Docket 309; Mr. Piers’s reply was
filed thereafter at Docket 310. Oral argument was not requested and was not necessary
to the Court’s determination.
BACKGROUND
On February 12, 2001, Mr. Piers was convicted by a trial jury of conspiracy to
commit armed bank robbery in violation of 18 U.S.C. § 371, armed bank robbery in
violation of 18 U.S.C. §§ 2113(a) and (d), conspiracy to commit a violation of 18 U.S.C. §
924(c)(1)(A) in violation of 18 U.S.C. § 924(o), carrying a semi-automatic assault weapon
during and in relation to a crime of violence in violation of 18 U.S.C. §§ 924(c)(1)(A) and
1 On June 27, 2017, after counsel was appointed, Mr. Piers filed an amended motion under §
2255 at Docket 306.
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(B)(ii), and possessing a firearm with an obliterated serial number in violation of 18 U.S.C.
§ 922(k). On August 9, 2001, Mr. Piers was sentenced to 468 months’ incarceration.2
Mr. Piers filed an appeal in which he argued that the trial court’s denial of his
request for new trial counsel violated his Sixth Amendment rights.3 	The Ninth Circuit
affirmed Mr. Piers’s convictions, with the exception of Count IV.4 On September 29, 2004,
Mr. Piers filed a timely motion to vacate his sentence and convictions under § 2255, which
was denied on October 21, 2005.5 Mr. Piers appealed to the Ninth Circuit, which affirmed
the district court on February 12, 2009.6
On June 22, 2016, Mr. Piers submitted an Application for Leave to File Second or
Successive Petition Under 28 U.S.C. § 2254 or Motion Under 28 U.S.C. § 2255.7 	The
Ninth Circuit initially rejected the application on July 8, 2016.8 However, on February 23,
2017, the Ninth Circuit found that Mr. Piers’s application “makes a prima facie showing
for relief under Johnson v. United States, 135 S.Ct. 2551 (2015)” and granted the
application.9 Accordingly, Mr. Piers’s June 2016 motion was then deemed filed.
2 Docket 306 (Am. Motion) at 3; Docket 146 (Minutes); Docket 147 (Judgment).
3 See United States v. Franklin, 321 F.3d 1231, 1241 (9th Cir. 2003).
4 See United States v. Franklin, 321 F.3d 1231, 1241 (9th Cir. 2003). The Ninth Circuit held that
the district court should have consolidated Counts IV and V, both of which were based on 18
U.S.C. § 924(c). The Court vacated Count IV and “remanded for resentencing with instructions
to consolidate Counts IV and V, impose the mandatory minimum 360-month sentence on Count
V, and reenter judgment.” Id.
5 United States v. Piers, 2005 WL 2786079, at *21 (D. Alaska Oct. 21, 2005).
6 United States v. Piers, 312 F. App’x 69, 71 (9th Cir. 2009).
7 Docket 293.
8 Docket 291 (Order re § 2255 Motion).
9 Docket 292 (Second Order re § 2255 Motion).
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Mr. Piers was self-represented when he initially submitted the application in June
2016. 	On March 9, 2017, Mr. Piers filed a Motion to Appoint Counsel.10 	On April 14,
2017, this Court granted the motion and an attorney was appointed for Mr. Piers.11 On
June 27, 2017, Mr. Piers filed an amended motion to vacate.12
DISCUSSION
Mr. Piers’s amended petition contends that the elements of armed bank robbery
as set forth in 18 U.S.C. §§ 2113(a) and (d) do not constitute a “crime of violence” under
18 U.S.C. § 924(c)(3); therefore, his convictions under § 924(c)(1) must be vacated. The
Government maintains that Mr. Piers’s petition is procedurally defaulted and if the Court
reaches the merits of the petition it should be denied.
1. 	Procedural Default
The Government first argues that Mr. Piers’s petition is procedurally defaulted.13
28 U.S.C. § 2255(f) establishes a one-year period of limitations on motions to vacate
convictions and sentence. However, § 2255(f)(3) provides for a 1-year limitations period
that begins on “the date on which the right asserted was initially recognized by the
Supreme Court, if that right has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review[.]”14 	Although Mr. Piers’s motion
10 Docket 295 (Motion to Appoint Counsel).
11 Docket 297 (Order Granting Motion).
12 Docket 306.
13 Docket 309 at 5.
14 The case upon which Mr. Piers bases his petition, Johnson v. United States (Johnson II), 135
S.Ct. 2551, 2557 (2015), was issued on June 26, 2015. 	Mr. Piers filed his original petition on
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was brought more than a decade after his 2001 conviction, he argues that he “can
establish cause and prejudice to excuse any purported procedural default.”15 Mr. Piers
maintains that because his motion is based on Johnson II, the argument he makes was
not “reasonably available” to him until Johnson II was decided in 2015.16 The Supreme
Court has held that “where a constitutional claim is so novel that its legal basis is not
reasonably available to counsel, a defendant has cause for his failure to raise the claim
in accordance with applicable state procedures.”17
The Government maintains that Mr. Piers’s § 2255 motion is procedurally defaulted
because “this claim was available to him at the time of his trial, his initial appeal, and his
first § 2255 motion [and he] failed to raise any objection concerning this issue until now.”18
The Government asserts that armed bank robbery under 18 U.S.C. §§ 2113(a) and (d) is
categorically a crime of violence under the “force clause” of 18 U.S.C. § 924(c)(3)(A).19
Therefore, Johnson II’s holding under the residual clause is inapplicable.
In Johnson II, the Supreme Court held that the “residual clause” of the Armed
June 22, 2016, within one year of Johnson II.
15 Docket 310 at 7.
16 Docket 310 at 8 (citing Reed v. Ross, 468 U.S. 1, 15 (1984)). In Welch v. United States, the
Supreme Court “declared that Johnson II was a substantive decision with retroactive effect in
cases on collateral review.” United States v. Jones, 2017 WL 6395827, at *1 (9th Cir. Dec. 15,
2017) (citing Welch v. United States, 136 S.Ct. 1257, 1265 (2016)). Thus, Mr. Piers asserts that
Johnson II retroactively applies to his case. Docket 306 at 5.
17 Reed v. Ross, 468 U.S. 1, 15 (1984)).
18 Docket 309 at 5.
19 At the time of Mr. Piers’s sentencing, as now,18 U.S.C. § 924(c)(3)(A) provided that a “crime of
violence” is a felony that “has as an element the use, attempted use, or threatened use of physical
force against the person or property of another[.]” 	All additional statutes cited represent the
versions in effect at the time of Mr. Piers’s sentencing.
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Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), which defined a “violent felony” as a
felony that “involves conduct that presents a serious potential risk of physical injury to
another,” to be unconstitutionally vague.20 	Mr. Piers likens the residual clause of §
924(e)(2)(B)(ii) to that of § 924(c)(3)(B), which defines a crime of violence as an offense
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.” He argues that
“[b]ecause it is interpreted identically to the ACCA residual clause, the holding of Johnson
II applies with equal force to the residual clause of 18 U.S.C. § 924(c).”21
Mr. Piers also argues that armed bank robbery does not qualify as a crime of
violence under the “force clause” of § 924(c)(3)(A). 	Therefore, he maintains that he is
entitled to relief because armed bank robbery could only qualify as a crime of violence
under the type of residual clause that Johnson II invalidated. 	However, Mr. Piers does
not demonstrate why his argument regarding the force clause could not have been raised
earlier. He asserts that federal armed bank robbery does not meet the standard set out
in Johnson v. United States (Johnson I), which “interpreted [the force clause of] 18 U.S.C.
§ 924(e)(2)(B)(i) to require violent force.”22 	However, Johnson I was issued in 2010—
several years before Mr. Piers filed this renewed motion—and therefore Mr. Piers cannot
persuasively assert that his force clause argument was not reasonably available to him
until now.23
20 Johnson II, 135 S.Ct. at 2557.
21 Docket 306 at 6.
22 559 U.S. 133, 143 (2010).
23 Mr. Piers also asserts in his Reply that he “can avail himself of the ‘actual innocence’ exception
to the procedural default doctrine.” 	Docket 310 at 7. 	However, Mr. Piers’s claim of innocence
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For the foregoing reasons, the Court finds that the Government has made a
persuasive showing that Mr. Piers’s claim under the force clause has been procedurally
defaulted.
2. 	Armed Bank Robbery is a Crime of Violence Under § 924(c)(3)(A)
Even if Mr. Piers’s claim is not procedurally defaulted, he is not entitled to relief
because controlling Ninth Circuit case law has established that armed bank robbery is
categorically a crime of violence under the “force clause” of 18 U.S.C. § 924(c)(3). Under
18 	U.S.C. 	§ 	924(c)(1)(A), 	a 	defendant 	is 	subject 	to 	an 	enhanced 	sentence 	of
imprisonment if he, “during and in relation to any crime of violence . . . uses or carries a
firearm, or who, in furtherance of any such crime, possesses a firearm[.]”24 	Section
924(c)(3)(A), the “force clause,” defines a “crime of violence” to include a felony offense
that “has as an element the use, attempted use, or threatened use of physical force
against the person or property of another.”
As set forth in 18 U.S.C. § 2113(a), bank robbery includes the following:
Whoever, by force and violence, or by intimidation, takes, or attempts to
take, from the person or presence of another . . . any property or money or
any other thing of value belonging to, or in the care, custody, control,
management, or possession of, any bank, credit union, or any savings and
loan association . . . . Shall be fined under this title or imprisoned not more
than twenty years; or both.
depends entirely on his unpersuasive assertion that armed bank robbery is not a crime of violence.
Because he has not provided “new evidence of innocence,” his claim of actual innocence is
unavailing. See Schlup v. Delo, 513 U.S. 298, 316 (1995).
24 § 924(c)(1)(A)(i) provides that a defendant in violation of the provision will “be sentenced to a
term of imprisonment of not less than five years.” 	Under §924(c)(1)(A)(ii), the term of
imprisonment is “not less than 7 years” if “the firearm is brandished.” § 924(c)(1)(B)(ii) provides
that “[i]f the firearm possessed by a person convicted of a violation of this subsection . . . is a
machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler, the
person shall be sentenced to a term of imprisonment of not less than 30 years.”
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Armed bank robbery falls under subsection (d) of § 2113, which provides: “Whoever, in
committing, or in attempting to commit, any offense defined in subsections (a) and (b) of
this section, assaults any person, or puts in jeopardy the life of any person by the use of
a dangerous weapon or device, shall be fined under this title or imprisoned not more than
twenty-five years, or both.”
In United States v. Wright, the Ninth Circuit unequivocally held that armed bank
robbery under 18 U.S.C. § 2113(a) and (d) constitutes a crime of violence under 18 U.S.C.
§ 924(c)(3).25 	The Circuit Court held “[a]rmed bank robbery qualifies as a crime of
violence because one of the elements of the offense is a taking ‘by force and violence, or
by intimidation,’” citing § 2113(a).26 This conclusion is not directly called into question in
Johnson I or Johnson II, neither of which interpreted § 924(c)(3)(A). 	Nevertheless, Mr.
Piers argues that “the Supreme Court decisions in Johnson I and Johnson II and the
intervening authority in the Ninth Circuit and elsewhere have demonstrated that the
25 215 F.3d 1020, 1028 (9th Cir. 2000).
26 United States v. Wright, 215 F.3d 1020, 1028 (9th Cir. 2000).
See also United States v. Selfa, 918 F.2d 749 (9th Cir. 1990). In Selfa, the Ninth Circuit
held that “persons convicted of robbing a bank ‘by force and violence’ or ‘intimidation’ under 18
U.S.C. § 2113(a) have been convicted of a ‘crime of violence’ within the meaning of Guideline
Section 4B1.1.” 	Id. at 751. 	The applicable definition of a crime of violence for purposes of §
4B1.1 is a felony that “has as an element the use, attempted use, or threatened use of physical
force against the person of another[.]”
The Ninth Circuit recently reaffirmed Selfa, and held that “federal bank robbery is a crime
of violence,” reasoning that “[b]ank robbery by intimidation thus requires at least an implicit threat
to use the type of violent physical force necessary to meet the Johnson standard.” See United
States v. Gutierrez, __ F.3d __, 2017 WL 6327835, at *2 (9th Cir. Dec. 12, 2017).
Another recent Ninth Circuit opinion held that an Arizona attempted armed robbery
conviction did not fall within the “force clause” under the ACCA because the Court found that that
particular state statute, (unlike the one at issue here), punished conduct that did not involve violent
force. United States v. Molinar, 876 F.3d 953 (9th Cir. 2017).
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analysis in Selfa and Wright is no longer valid.”27
This Court is bound by Ninth Circuit precedent.28 And yet, in Miller v. Gammie, the
Ninth Circuit recognized an exception to this rule “where the reasoning or theory of [] prior
circuit authority is clearly irreconcilable with the reasoning or theory of intervening higher
authority[.]”29 	This is a “high standard”30 met when the prior precedent has been
“effectively overruled” by the intervening higher authority, although “the issues decided
by the higher court need not be identical in order to be controlling.”31 “For [a court] to hold
that an intervening Supreme Court decision has ‘effectively overruled’ circuit precedent,
the intervening decision must do more than simply ‘cast doubt’ on our precedent. Rather,
it must ‘undercut the theory or reasoning underlying the prior circuit precedent in such a
way that the cases are clearly irreconcilable.’”32
Here, Mr. Piers has not shown that the Circuit’s holding of Wright is “clearly
irreconcilable” with or has been “effectively overruled” by Johnson I and Johnson II.
Neither of the Johnson decisions involved armed bank robbery in violation of 18 U.S.C.
§§ 2113(a) and (d), the statutes at issue both in this case and in Wright. 	In Johnson I,
27 Docket 306 at 15.
28 Hart v. Massanari, 266 F.3d 1155, 1175 (9th Cir. 2001) (“A district court bound by circuit authority
. . . has no choice but to follow it, even if convinced that such authority was wrongly decided.”).
29 Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003); see Lair v. Bullock, 697 F.3d 1200, 1206
(9th Cir. 2012) (holding Gammie “made it clear that this standard applies not only to three-judge
panels but also to district courts within this circuit”) (citing Gammie, 335 F.3d at 899).
30 United States v. Robertson, 875 F.3d 1281, 1291 (9th Cir. 2017).
31 Gammie, 335 F.3d at 893, 900.
32 See United States v. Delgado-Ramos, 635 F.3d 1237, 1239 (9th Cir. 2011) (quoting Gammie,
335 F.3d at 900.
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the Supreme Court held that the defendant’s conviction for simple battery under Florida
law did not qualify as a “violent felony” under the ACCA’s force clause.33 In Johnson II,
the Supreme Court concluded that the residual clause in the ACCA was unconstitutionally
vague.34
Neither Johnson case is clearly irreconcilable with Wright’s holding, despite some
overlapping language in the different provisions at issue. 	Wright and its progeny direct
the Court to recognize federal armed bank robbery as a crime of violence under §
924(c)(3)(A).
Mr. Piers argues that the Government has relied “almost exclusively” on pre-
Johnson II authority, but recent Circuit authority reiterates that federal armed bank
robbery is a crime of violence under § 924(c)(3).35 	In United States v. Pritchard, an
unpublished 2017 case, the Circuit observed that “[w]e have twice held that armed bank
robbery in violation of 2113(a) qualifies as a crime of violence.” 	After then citing both
Wright and Selfa, the Circuit then found that “Pritchard fails to show that any intervening
authority is ‘clearly irreconcilable with’ or have overruled these authorities.”36 The Ninth
33 Johnson I, 559 U.S. 133, 145 (2010). In Johnson I, the defendant asserted that his conviction
for battery under Florida law was not a “violent felony” under 18 U.S.C. § 924(e)(2)(B)’s residual
clause. 	Johnson I, 559 U.S. at 138. 	Because an individual could violate the state statute by
“mere unwanted touching,” the Supreme Court held that the statute did not require the use of
“strong physical force” sufficient to be considered a crime of violence. Id. at 140–142. While the
Supreme Court’s decision discussed broader issues related to crimes of violence, the precise
scope of Johnson I’s actual holding did not effectively overrule Wright.
34 Johnson II, 135 S.Ct. 2551, 2557 (2015). There, the Supreme Court invalidated the residual
clause of 18 U.S.C. § 924(e)(2)(B); that provision is not at issue in the instant case, nor was it at
issue in Wright. Accordingly, Johnson II is not “clearly irreconcilable” with Wright.
35 Docket 310 at 11.
36 United States v. Pritchard, 692 F. App'x 349, 351 (9th Cir. 2017), cert. denied sub nom. Johnson
v. United States, __ U.S. __, 2017 WL 4269844 (Oct. 30, 2017)).
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Circuit noted that “the requirement of ‘violent force’ under Johnson v. United States . . . is
not inconsistent with our clear statement that the element of ‘intimidation’ is ‘sufficient to
meet the . . . requirement of a threatened use of physical force’” under § 924(c)(3).37 In
United States v. Jordan, another unpublished decision, the Ninth Circuit held, “Under our
current case law, § 2113(a) bank robbery categorically qualifies as a ‘crime of violence’
under § 924(c)(3)(A).”38 	And in a recent opinion, United States v. Gutierrez, the Ninth
Circuit once again recognized that “federal bank robbery constitutes a crime of violence”
under § 924(c)(3).39 The court noted that “[b]ank robbery by intimidation thus requires at
least an implicit threat to use the type of violent physical force necessary to meet the
Johnson standard.”40 	Several recent district court cases in the Ninth Circuit have also
held that armed robbery is a crime of violence under §924(c)(3)(A).41
Mr. Piers cites numerous cases that have considered the applicability of Johnson
I and Johnson II to other crimes, but not cases that address whether armed bank robbery
in violation of § 2113(a) is a crime of violence under § 924(c)(3).42 But Mr. Piers has not
37 Id.
38 United States v. Jordan, 680 F. App'x 634, 635 (9th Cir. 2017), cert. denied, 138 S.Ct. 160
(2017).
39 United States v. Gutierrez, 2017 WL 6327835, at *2 (9th Cir. Dec. 12, 2017) (holding carjacking
is crime of violence under § 924(c)(1)(A)).
40 Id.
41 See, e.g., United States v. Ramirez, 2017 WL 4038338, at *2 (E.D. Cal. Sept. 13, 2017)); United
States v. Scott, 2017 WL 3783271, at *3 (E.D. Cal. Aug. 31, 2017).
42 See Docket 306 at 10–14 (citing United States v. Torres-Miguel, 701 F.3d 165 (4th Cir. 2012);
United States v. Martinez-Flores, 720 F.3d 293, 299 (5th Cir. 2013)). On December 14, 2017, at
Docket 311, Mr. Piers filed supplemental briefing discussing the recently decided Tenth Circuit
case of United States v. O’Connor, 874 F.3d 1147 (10th Cir. 2017). In O’Connor, the Tenth Circuit
applied the categorical approach and concluded that a Hobbs Act robbery is not a crime of
violence under U.S.S.G. § 4B1.2(a)(1). 	The court held that the defendant did not need to
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demonstrated that the Ninth Circuit’s decision in Wright has been effectively overruled.43
Accordingly, the Court finds federal armed bank robbery remains a crime of violence
under § 924(c)(3)(A).44
CONCLUSION
In light of the foregoing, IT IS ORDERED that Defendant William Piers’s Motion to
Vacate at Docket 293 is DENIED.
However, because it appears that the Ninth Circuit has issued Certificates of
Appealability on this topic in similar cases, the Court will grant a Certificate of Appealability
on the issue of whether armed bank robbery in violation of 18 U.S.C. §§ 2113 (a) and (d)
is a crime of violence under the force clause of § 924(c)(3).45
DATED this 22nd day of December, 2017 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
demonstrate a “realistic probability” that the government has or would prosecute threats to
property as a Hobbs Act robbery. Id. at 1154. In light of the aforementioned Ninth Circuit authority
holding that federal armed bank robbery is a crime of violence, the O’Connor decision does not
require this Court to reach a different result.
43 See Docket 306 at 15. 	Mr. Piers also identifies several cases currently pending before the
Ninth Circuit that involve the issue of whether bank robbery or armed bank robbery constitute a
crime of violence. See Docket 306 at 11 n. 4 (citing United States v. Cantu, No. 17-55063; United
States v. Williams, No. 16-36011; United States v. Watson, No. 16-15357; United States v. De La
Torre, No. 16-56730; United States v. Hughes, No. 17-55734). At this juncture, none of these
cases have been decided by the Ninth Circuit.
44 Based on the foregoing, this Court does not reach Mr. Piers’s alternative substantive argument,
which is that § 924(c)(3)(B) (the residual clause) is unconstitutionally vague. See Docket 306 at
4–7.
45 See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (a certificate of appealability may be granted
if the applicant has made “a substantial showing of the denial of a constitutional right,” i.e., a
showing that “reasonable jurists could debate whether . . . the petition should have been resolved
in a different manner or that the issues presented were adequate to deserve encouragement to
proceed further.” (internal quotation marks and citations omitted)).
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