Jackson v. United States of America

Filing 10

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
WESTERN DIVISION

JARED JACKSON,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Cv. No. 2:16-02526-SMH
Cr. No. 2:06-20475-SMH

ORDER

Before the Court are two motions filed by Petitioner Jared
Jackson: (1) a pro se motion seeking to vacate, set aside, or
correct

his

sentence

under

28

U.S.C.

§

2255

(the

Ҥ 2255

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.)
20475.

(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.

(ECF No.

9.)
For the following reasons, the § 2255 Motion is DENIED, and
the Motion to Amend § 2255 is DENIED AS FUTILE.

I.

Background
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
Career

Criminal

pursuant

to

§

4B1.4

of

the

U.S.

Sentencing

Commission Guidelines and a Career Offender pursuant to § 4B1.1
of

the

U.S.

Investigation
record

Sentencing
Report

included

robbery.

(Id.

(“PSR”)

five
at

Commission

¶¶

¶

Tennessee
24,

Guidelines.

18.)

Petitioner’s

convictions

26-29.)

guideline range was 262 to 327 months.

(Presentence

for

criminal
aggravated

Petitioner’s
(Id. at ¶ 59.)

advisory
He was

sentenced to the statutory minimum of 180 months for the Hobbs
Act

robbery

and

felon

in

possession

convictions,

to

run

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.)

this

§

2255 Motion.

On August 12, 2016, Petitioner filed the Motion to

1

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.).

2

Amend § 2255.
Petitioner

(ECF No. 5; see also ECF No. 5-1; ECF No. 5-2.)

argues

that

he

is

entitled

to

resentencing

Johnson v. United States, 135 S. Ct. 2551 (2015).
3.)

under

(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
of law.”
“crime

(Id.)

of

He also argues that Hobbs Act Robbery is not a

violence.”

(Id.)

“vacate his conviction.”
II.

Petitioner

asks

the

Court

to

(Id.)

Analysis
Petitioner makes two arguments.

light

of

the

Supreme

Court’s

First, he argues that, “in

recent

decision

in

Johnson

v.

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
Act

(ACCA)

clause,”

“§924(c)’s

unconstitutionally vague.”

residual

clause

(Id. at 2-3.)

is

likewise

Second, Petitioner

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
Circuit.

In

United

States

“[b]ecause

§

924(c)(3)(B)

v.

is

Taylor,

the

considerably

court
narrower

held

that,

than

the

statute invalidated by the Court in Johnson, and because much of
3

Johnson's
definition

analysis
of

does

“crime

not

of

unconstitutionally vague.

apply

to

violence”

in

§

924(c)(3)(B),”

§

924(c)(3)(B)

the

is

not

814 F.3d 340, 375-76 (6th Cir. 2016).

Petitioner’s second argument has also been rejected by the
Sixth Circuit.

In United States v. Gooch, the court held “that

Hobbs Act robbery constitutes a crime of violence.”
285, 292 (6th Cir. 2017).

850 F.3d

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
definition

of

‘violent

felony,’”

which

was

struck

down

in

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.)

(ECF

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.)

As

discussed above, those arguments have been rejected by the Sixth
Circuit.

Petitioner’s

Motion

to

Amend

§

2255

is

DENIED

AS

FUTILE.
III. Appealability
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
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applicant has made a substantial showing of the denial of a
constitutional right.”
App. P. 22(b).

28 U.S.C. § 2253(c)(2); see also Fed. R.

No § 2255 movant may appeal without this

certificate.
The COA must state the specific issue or issues that
satisfy the required showing.

28 U.S.C. §§ 2253(c)(2) & (3).

A

“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.”

Miller-El v.

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.
2011).

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.

He

cannot present a question of some substance about which
reasonable jurists could differ.

The Court DENIES a certificate

of appealability.
The Sixth Circuit has held that the Prison Litigation
Reform Act of 1995, 28 U.S.C. §§ 1915(a)-(b), does not apply to
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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
Procedure 24(a).

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.

24(a) (4)-(5).
Because Petitioner is clearly not entitled to relief, the
Court has denied a certificate of appealability.

It is

CERTIFIED, pursuant to Federal Rule of Appellate Procedure
24(a), that any appeal in this matter would not be taken in good
faith.
IV.

Leave to appeal in forma pauperis is DENIED.2

Conclusion
For the foregoing reasons, Petitioner’s § 2255 Motion is

DENIED, and his Motion to Amend § 2255 is DENIED AS FUTILE.
2

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.

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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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