GREER v. USA

Filing 9

Entry Dismissing Motion to Vacate, Set Aside, or Correct Sentence, Directing Entry of Final Judgment, and Denying a Certificate of Appealability - Fletcher Andrew Greer on April 2, 2015, pled guilty to four counts of robbery affecting interstate c ommerce (Hobbs Act robbery) and one count of brandishing a firearm during the commission of a crime of violence. United States v. Greer, No. 1:14-cr-0237-JMS-DKL-3 (S.D. Ind.) He did not appeal. Following the Supreme Court's decision in Joh nson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015), invalidating the residual clause of the Armed Career Criminal Act, Greer commenced this action pursuant to 28 U.S.C. § 2255. Greer contends that Johnson applies to his brandishin g a firearm conviction, imposed pursuant to 18 U.S.C. § 924(c), because the reasoning of Johnson causes Hobbs Act robberies to not be considered crimes of violence. It plainly appears from the face of Greer's motion and the record of prior proceedings that Greer is not entitled to relief. Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts the Court now dismisses this action. Judgment consistent with this Entry shall now issue. The clerk is directed to docket a copy of this Entry in case number 1:14-cr-00237-JMS-DKL-3. 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 Greer 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. (See Entry). Copy to Petitioner via US Mail. Signed by Judge Jane Magnus-Stinson on 9/1/2017.(APD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
FLETCHER ANDREW GREER,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 1:16-cv-01646-JMS-TAB

Entry Dismissing Motion to Vacate, Set Aside, or Correct Sentence,
Directing Entry of Final Judgment,
and Denying a Certificate of Appealability
Fletcher Andrew Greer on April 2, 2015, pled guilty to four counts of robbery affecting
interstate commerce (Hobbs Act robbery) and one count of brandishing a firearm during the
commission of a crime of violence. United States v. Greer, No. 1:14-cr-0237-JMS-DKL-3 (S.D.
Ind.) He did not appeal. Following the Supreme Court’s decision in Johnson v. United States, 576
U.S. ___, 135 S. Ct. 2551 (2015), invalidating the residual clause of the Armed Career Criminal
Act, Greer commenced this action pursuant to 28 U.S.C. § 2255. Greer contends that Johnson
applies to his brandishing a firearm conviction, imposed pursuant to 18 U.S.C. § 924(c), because
the reasoning of Johnson causes Hobbs Act robberies to not be considered crimes of violence.
Counsel was appointed for Greer, but counsel withdrew before a brief supporting
Section 2255 relief could be filed. Following counsel’s withdrawal, Greer was directed to either
file a voluntary dismissal or a brief in support of his motion by June 2, 1997. Greer did not respond,
and on June 19, 2017, the Court directed Greer to either brief his motion or file a voluntary
dismissal no later than August 21, 2017. Again, Greer did not respond. Because the motion has
never been briefed, the United States has not answered or responded.

Rather than dismiss this action for failure to prosecute, the Court elects to proceed under
Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts
and conduct a preliminary review of Greer’s motion. 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.”
Greer argues that pursuant to Johnson, his conviction under 18 U.S.C. § 924(c) for
brandishing a firearm during the commission of a violent felony – in other words a Hobbs Act
robbery – is invalid because Hobbs Act robberies are not crimes of violence. This argument has
been rejected by the Seventh Circuit. In United States v. Anglin, 846 F.3d 954, 965 (7th Cir. 2017),
the court held that a “Hobbs Act robbery is a “crime of violence” within the meaning of
§ 923(c)(3)(A).” Hobbs Act robberies are violent felonies because they qualify under the elements
clause of 18 U.S.C. § 924(c)(3)(A). Id.; accord, United States v. Armour, 840 F.3d 904, 907-08
(7th Cir. 2016).
In other words, Greer was sentenced for his firearm use under a specific statutory provision
and not the residual clause of section 924(c)(3)(B). Thus the reasoning of Johnson is inapplicable
and does not invalidate Greer’s sentence.
Therefore, it plainly appears from the face of Greer’s motion and the record of prior
proceedings that Greer is not entitled to relief. Pursuant to Rule 4(b) of the Rules Governing

Section 2255 Proceedings for the United States District Courts the Court now dismisses this
action.
Judgment consistent with this Entry shall now issue. The clerk is directed to docket a
copy of this Entry in case number 1:14-cr-00237-JMS-DKL-3.
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 Greer 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.

Date: 9/1/2017

Distribution:
James Robert Wood
UNITED STATES ATTORNEY'S OFFICE
[e-mail]
Fletcher Andrew Greer
#12252-028
FCI-Elkton
Inmate Mail/Parcels
P.O. BOX 10
Lisbon, OH 44432