Jackson v. United States of America
ORDER denying § 2255 Motion 1 , denying Motion to Amend § 2255 5 . Signed by Judge Samuel H. Mays, Jr on 10-31-2017. (Mays, Samuel)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
UNITED STATES OF AMERICA,
Cv. No. 2:16-02526-SMH
Cr. No. 2:06-20475-SMH
Before the Court are two motions filed by Petitioner Jared
Jackson: (1) a pro se motion seeking to vacate, set aside, or
Motion”), filed on June 26, 2016 (ECF No. 1), and (2) a pro se
motion for leave to file an amended motion seeking to vacate,
set aside, or correct his sentence under 28 U.S.C. § 2255 (the
“Motion to Amend § 2255”).
ECF No. 5-2.)
(ECF No. 5; see also ECF No. 5-1;
Jackson challenges his sentence in Case No. 2:06-
The Government responded on October 13, 2017.
For the following reasons, the § 2255 Motion is DENIED, and
the Motion to Amend § 2255 is DENIED AS FUTILE.
On January 5, 2009, Petitioner pled guilty to three counts:
(1) illegal possession of a firearm by a felon, in violation of
18 U.S.C. § 922; (2) Hobbs Act robbery, in violation of 18
U.S.C. § 1951; and (3) use of a firearm in relation to a crime
of violence, in violation of 18 U.S.C. § 924(c).
71 at 61; Cr. ECF No. 62 at 51-53.)1
(Cr. ECF No.
At Petitioner’s sentencing
on March 22, 2010, the Court determined that he was an Armed
Commission Guidelines and a Career Offender pursuant to § 4B1.1
guideline range was 262 to 327 months.
(Id. at ¶ 59.)
sentenced to the statutory minimum of 180 months for the Hobbs
concurrently, and to the statutory minimum of 84 months for the
§ 924(c) conviction, to run consecutively, for a total of 264
months in prison.
(Cr. ECF No. 89 at 81.)
On June 28,
2016, Petitioner filed
(ECF No. 1.)
On August 12, 2016, Petitioner filed the Motion to
Unless otherwise noted, all pin cites for record citations are to the
“PageID” page number.
Citations to (Cr. ECF at ##) refer to the criminal
case Jackson v. United States, No. 2:06-cr-20475-BBD (W.D. Tenn.).
Amend § 2255.
(ECF No. 5; see also ECF No. 5-1; ECF No. 5-2.)
Johnson v. United States, 135 S. Ct. 2551 (2015).
(ECF No. 1 at
He contends that, after Johnson, his conviction for using a
firearm in relation to a crime of violence “violates due process
He also argues that Hobbs Act Robbery is not a
“vacate his conviction.”
Petitioner makes two arguments.
First, he argues that, “in
United States . . . Petitioner’s 924(c) conviction categorically
fails to qualify as a ‘crime of violence.’”
(ECF No. 1 at 2.)
Petitioner argues that, because “[t]he §924(c) residual clause
is materially indistinguishabl[e] from the Armed Career Criminal
(Id. at 2-3.)
argues that his conviction for Hobbs Act Robbery “categorically
fails to qualify as a ‘crime of violence’ under the remaining
§924(c) force clause.”
(Id. at 3.)
Petitioner’s first argument has been rejected by the Sixth
statute invalidated by the Court in Johnson, and because much of
814 F.3d 340, 375-76 (6th Cir. 2016).
Petitioner’s second argument has also been rejected by the
In United States v. Gooch, the court held “that
Hobbs Act robbery constitutes a crime of violence.”
285, 292 (6th Cir. 2017).
Petitioner’s § 2255 Motion is DENIED.
Petitioner’s Motion to Amend § 2255 seeks relief on the
same grounds as his § 2255 Motion.
Petitioner argues again
that, because “Section 924(c)(3)(B)’s definition of ‘crime of
violence’ is substantially similar to the ACCA residual clause’s
Johnson, his Hobbs Act robbery conviction “is not a qualifying
predicate offense for 18 U.S.C. § 924(c)(3)(B) purposes.”
No. 5-2 at 30, 33.)
Petitioner also argues that Hobbs Act
Robbery “does not qualify as a ‘crime of violence’ under the
force clause of 18 U.S.C. § 924(c)(3)(A).”
(Id. at 33.)
discussed above, those arguments have been rejected by the Sixth
28 U.S.C. § 2253(a) requires a district court to evaluate
the appealability of its decision denying a § 2255 motion and to
issue a certificate of appealability (“COA”) “only if the
applicant has made a substantial showing of the denial of a
App. P. 22(b).
28 U.S.C. § 2253(c)(2); see also Fed. R.
No § 2255 movant may appeal without this
The COA must state the specific issue or issues that
satisfy the required showing.
28 U.S.C. §§ 2253(c)(2) & (3).
“substantial showing” is made when the movant demonstrates that
“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.”
Cockrell, 537 U.S. 322, 336 (2003) (internal quotation marks and
citation omitted); see also Henley v. Bell, 308 F. App’x 989,
990 (6th Cir. 2009) (per curiam).
A COA does not require a
showing that the appeal will succeed.
Miller-El, 537 U.S. at
337; Caldwell v. Lewis, 414 F. App’x 809, 814-15 (6th Cir.
Courts should not issue a COA as a matter of course.
Bradley v. Birkett, 156 F. App’x 771, 773 (6th Cir. 2005).
Petitioner is not entitled to relief under Johnson.
cannot present a question of some substance about which
reasonable jurists could differ.
The Court DENIES a certificate
The Sixth Circuit has held that the Prison Litigation
Reform Act of 1995, 28 U.S.C. §§ 1915(a)-(b), does not apply to
appeals of orders denying § 2255 motions.
117 F.3d 949, 951 (6th Cir. 1997).
Kincade v. Sparkman,
Rather, to appeal in forma
pauperis in a § 2255 case, and thereby avoid the appellate
filing fee required by 28 U.S.C. §§ 1913 and 1917, a prisoner
must obtain pauper status pursuant to Federal Rule of Appellate
Kincade, 117 F.3d at 952.
Rule 24(a) provides
that a party seeking pauper status on appeal must first file a
motion in the district court, along with a supporting affidavit.
Fed. R. App. P. 24(a)(1).
However, Rule 24(a) also provides
that if the district court certifies that an appeal would not be
taken in good faith, or otherwise denies leave to appeal in
forma pauperis, a prisoner must file his motion to proceed in
forma pauperis in the appellate court.
See Fed. R. App. P.
Because Petitioner is clearly not entitled to relief, the
Court has denied a certificate of appealability.
CERTIFIED, pursuant to Federal Rule of Appellate Procedure
24(a), that any appeal in this matter would not be taken in good
Leave to appeal in forma pauperis is DENIED.2
For the foregoing reasons, Petitioner’s § 2255 Motion is
DENIED, and his Motion to Amend § 2255 is DENIED AS FUTILE.
If Petitioner files a notice of appeal, he must also pay the appellate
filing fee or file a motion to proceed in forma pauperis and supporting
affidavit in the Sixth Circuit Court of Appeals within 30 days.
So ordered this 31st day of October, 2017.
/s/ Samuel H. Mays, Jr. ____
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE
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