Church v. USA

Filing 1

OPINION AND ORDER DISMISSING Petitioner's Motion for Relief Under 28 U.S.C. § 2255(f)(3) (DE 322 in Case No. 1:15-CR-42). The Court declines to issue a Certificate of Appealability. Signed by Chief Judge Theresa L Springmann on 4/17/2019. (Copy mailed to pro se party via certified mail 7000 1670 0012 9261 0167)(lns)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
UNITED STATES OF AMERICA

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v.
FREDDIE L. CHURCH, JR.

CAUSE NO.: 1:15-CR-42-1-TLS
[1:18-CV-264]

OPINION AND ORDER
The Defendant, Freddie L. Church, Jr., is serving a sentence for attempting to interfere
with commerce by robbery in violation of 18 U.S.C. ' 1951(a) and (b) (Count 3), and carrying a
firearm during and in relation to a crime of violence in violation of 18 U.S.C. ' 924(c) (Count 5).
For purposes of the Count 5 § 924(c) conviction, the crime of violence was the attempted Hobbs
Act robbery that was set forth in Count 3. The Defendant now seeks to vacate his conviction and
sentence under § 924(c) [Motion for Relief Under 28 U.S.C. § 2255(f)(3), ECF No. 322]. The
Defendant predicates his Motion on the Supreme Court’s decision in Sessions v. Dimaya, 138 S.
Ct. 1204 (2018). He argues that attempted Hobbs Act robbery is not a crime of violence under
the categorical approach.
The Government has filed a Response [ECF No. 330], arguing that Dimaya has no
bearing on whether Hobbs Act robbery remains a crime of violence under § 924(c)’s elements
clause, and thus does not extend the one-year filing deadline.

ANALYSIS
The Defendant’s judgment of conviction was entered on May 10, 2017. He filed his
Motion to Vacate on August 21, 2018. A motion filed under 28 U.S.C. § 2255 is subject to a oneyear limitations period that runs from:

(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental
action in violation of the Constitution or laws of the United States is removed, if
the movant was prevented from making a motion by such governmental action;
(3) 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; or
(4) the date on which the facts supporting the claim or claims presented could have
been discovered through the exercise of due diligence.
28 U.S.C. § 2255(f). Accordingly, a defendant seeking collateral review under § 2255 will have
one year from the date on which his judgment of conviction is final to file his petition, id. §
2255(f)(1); see also Dodd v. United States, 545 U.S. 353, 357 (2005), or one year from three
limited, alternative circumstances, 28 U.S.C. § 2255(f)(2)–(4). Here, subsection (f)(3) is the only
subsection that could render the Defendant’s Motion timely.
The problem for the Defendant is that his Motion is not based on a right that has been
newly recognized by the Supreme Court and made retroactively applicable to cases on collateral
review. Dimaya cannot be the source of that right. Dimaya did not involve § 924(c). It involved
the materially identical 18 U.S.C. § 16(b), which is incorporated into the Immigration and
Nationality Act’s definition of the types of past criminal convictions that render an alien
deportable after entering the United States. Dimaya,138 S. Ct. at 1211. In finding § 16(b)
unconstitutionally vague, the Court stated that “just like ACCA’s residual clause, § 16(b)
‘produces more unpredictability and arbitrariness than the Due Process Clause tolerates.’”
Dimaya, 138 S. Ct. at 1223 (quoting Johnson, 135 S. Ct. at 2558). Dimaya did “not have
anything to do with the elements clause” of § 924(c) or any other statute, “and § 2255(f)(3)
therefore does not afford [him] a new one-year period to seek collateral relief on a theory that the
elements clause does not apply to a particular conviction.” Stanley v. United States, 827 F.3d
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562, 565 (7th Cir. 2016) (holding that a conviction that the sentencing court counted as violent
under the elements clause of the Sentencing Guidelines was outside the scope of Johnson v.
United States, 135 S. Ct. 2251 (2015)).
Here, the Defendant was found guilty of carrying a firearm in relation to a crime of
violence because attempted Hobbs Act robbery “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). “Hobbs Act robbery is a ‘crime of violence’ within the meaning of §
924(c)(3)(A).” United States v. Anglin, 846 F.3d 954, 965 (7th Cir. 2017)1; see also United
States v. Rivera, 847 F.3d 847, 848–49 (7th Cir. 2017) (stating that “[b]ecause one cannot
commit Hobbs Act robbery without using or threatening physical force, . . . Hobbs Act robbery
qualifies as a predicate for a crime-of-violence conviction”). The Defendant could not have been
found guilty of the attempted Hobbs Act robbery as charged in Count 3 of the Indictment unless
he “specific[ally] intent[ed] to commit the full robbery” and took “a substantial step toward that
end.” United States v. Muratovic, 719 F.3d 809, 815 (7th Cir. 2013). Accordingly, his offense of
conviction had, at the very least, the attempted or threatened use of physical force against the
person or property of another, which is sufficient to put it squarely within the elements clause
definition. The Defendant’s reliance on cases involving only a conspiracy, as opposed to an
attempt, to commit robbery are inapplicable to his Count 3 conviction.

The Supreme Court later vacated the judgment in Anglin, 138 S. Ct. 126 (2017), and remanded the case
to the Seventh Circuit for reconsideration of the sentence in light of Dean v. United States, 137 S. Ct.
1170 (2017). However, the Seventh Circuit has since observed that the Supreme Court’s disposition of
Anglin has not affected the portion of its ruling on the Hobbs Act. United States v. Fox, 878 F.3d 574, 579
(7th Cir. 2017). In Fox, the Seventh Circuit reaffirmed that “Hobbs Act robberies are crimes of violence
under Section 924(c)(3)(A).” Fox, 878 F.3d at 574.
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Because the Court considered the Defendant’s conviction for attempted Hobbs Act
robbery to be violent under the elements clause, § 924(c)(3)(A), and nothing in Dimaya creates a
newly recognized right related to the elements clause, the Defendant’s § 2255 motion is
untimely.

CERTIFICATE OF APPEALABILITY
Under Rule 11(a) of the Rules Governing § 2255 proceedings, the Court issues or denies
a certificate of appealability under 28 U.S.C. § 2253(c)(2) when it enters a final order adverse to
the applicant. A certificate of appealability may be issued “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Rule 11 of
Rules Governing Section 2255 Proceedings. The substantial showing standard is met when
“reasonable jurists could debate whether (or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation
marks omitted); Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983). “Where a plain procedural
bar is present and the district court is correct to invoke it to dispose of the case, a reasonable
jurist could not conclude either that the district court erred in dismissing the petition or that the
petitioner should be allowed to proceed further.” Slack, 529 U.S. at 484.
No reasonable jurists could debate whether the Defendant’s Motion presents a viable
ground for relief. Dimaya is not applicable and does not expand the statute of limitations.
Accordingly, the Court declines to issue a certificate of appealability as to the Defendant’s
Motion.

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CONCLUSION
For the reasons stated above, the Defendant’s Motion for Relief Under 28 U.S.C. §
2255(f)(3) [ECF No. 322] is DISMISSED. The Court declines to issue a Certificate of
Appealability.
SO ORDERED on April 17, 2019.
s/ Theresa L. Springmann
CHIEF JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT

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