BANKS v. USA
ENTRY Denying Motion to Vacate, Set Aside, or Correct Sentence and Denying a Certificate of Appealability. (SEE ORDER). Judgment consistent with this Entry shall now issue and a copy of this Entry shall be docketed in No. 1:07-cr-00164-LJM-KPF-1. Signed by Judge Larry J. McKinney on 6/13/2017. (copy via US Mail) (JKS)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
UNITED STATES OF AMERICA,
Entry Denying Motion to Vacate, Set Aside, or Correct Sentence
and Denying a Certificate of Appealability
The petitioner filed a motion for relief pursuant to 28 U.S.C. § 2255 arguing that,
under Johnson v. United States, 135 S. Ct. 2551 (2015), his convictions are
unconstitutional. For the reasons stated below, the motion for relief is denied and this
action is dismissed pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings
for the United States District Courts.
Rule 4 provides that upon preliminary consideration by the district court judge, “[i]f
it plainly appears from the motion, and any attached exhibits, and the record of prior
proceedings that the moving party is not entitled to relief, the judge must dismiss the
motion and direct the clerk to notify the moving party.” Section 2255 permits a federal
court to grant relief “if it finds that the judgment was rendered without jurisdiction, or that
the sentence imposed was not authorized by law or otherwise open to collateral attack,
or that there has been such a denial or infringement of the constitutional rights of the
prisoner as to render the judgment vulnerable to collateral attack.”
The petitioner, by counsel, filed a summary motion to vacate. The petitioner’s
counsel has since withdrawn, and the petitioner was given a lengthy period to file a brief
in support of his summary motion to vacate. The deadline has passed, and the petitioner
has failed to do so.
The petitioner’s summary motion states that his convictions under 18 U.S.C. §
924(c) for using a firearm during a “crime of violence” are invalid in light of Johnson.
Specifically, the predicate “crime of violence” to support his convictions was Hobbs Act
Robbery, 18 U.S.C. § 1951, and he argues that Hobbs Act Robbery no longer constitutes
a crime of violence under Johnson.
After the petitioner filed his § 2255 motion, the Seventh Circuit held that Johnson’s
holding extends to and therefore invalidates the residual clause in § 924(c), meaning §
924(c) convictions predicated on a crime of violence under § 924(c)’s residual clause
were invalid. See United States v. Cardena, 842 F.3d 959, 996 (7th Cir. 2016) (“[W]e
hold that the residual clause in 18 U.S.C. § 924(c)(3)(B) is also unconstitutionally
vague.”). However, the Seventh Circuit also held that that Hobbs Act robbery constitutes
a crime of violence under § 924(c)’s force clause. See United States v. Anglin, 846 F.3d
954, 965 (7th Cir. 2017) (“Hobbs Act robbery is a ‘crime of violence’ within the meaning
of § 92(c)(3)(A).”); see also United States v. Rivera, 847 F.3d 847, 849 (7th Cir. 2017)
(holding that the Supreme Court’s decision in Mathis v. United States, 136 S. Ct. 2243
(2016), does not undermine the holding of Anglin that Hobbs Act robbery constitutes a
crime of violence under the force clause of § 924(c)(3)). Therefore, even though Johnson
invalidated § 924(c)’s residual clause, Hobbs Act robbery remains a crime of violence
under § 924(c)’s force clause, and the petitioner’s convictions under § 924(c) remain valid.
For this reason, the petitioner in not entitled to habeas relief.
Judgment consistent with this Entry shall now issue and a copy of this Entry shall
be docketed in No. 1:07-cr-00164-LJM-KPF-1.
Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules
Governing § 2255 proceedings, and 28 U.S.C. § 2253(c), the Court finds that the
petitioner has failed to show that reasonable jurists would find “it debatable whether the
petition states a valid claim of the denial of a constitutional right.” Slack v. McDaniel, 529
U.S. 473, 484 (2000). The Court therefore denies a certificate of appealability.
IT IS SO ORDERED.
LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana
ELKTON - FCI
ELKTON FEDERAL CORRECTIONAL INSTITUTION
P.O. BOX 10
LISBON, OH 44432
James Robert Wood
UNITED STATES ATTORNEY'S OFFICE
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