Hobbs v. USA
Opinion and Order granting 5 Motion to Dismiss. (Ordered by Judge Reed C. O'Connor on 1/18/2017) (rekc)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
ANDREW WESLEY HOBBS
(BOP Register No. 30723-077),
UNITED STATES OF AMERICA,
OPINION AND ORDER
Movant Andrew Wesley Hobbs, a federal prisoner, proceeding pro se, has filed
a motion to vacate, set aside, or correct his federal sentence pursuant to 28 U.S.C. §
2255. See Dkt. No. 2. In response to the Court’s show cause order, see Dkt. No. 3, the
government has moved to dismiss the motion as time-barred, see Dkt. No. 5, and Hobbs
has responded to the government’s motion, see Dkt. No. 6. After considering the Section
2255 motion, the motion to dismiss, and Hobbs’s response, the Court concludes that the
motion to dismiss should be granted and that this action should be dismissed as barred
by the statute of limitations.
In 1997, Hobbs pleaded guilty to two counts of using or carrying a firearm
during a crime of violence, aiding and abetting, in violation of 18 U.S.C. §§ 924(c)(1)
and (2) and 2, and, on August 1, 1997, the Court sentenced Hobbs to a combined term
of 25 years of imprisonment. He did not appeal.
In this, his first, Section 2255 motion, Hobbs challenges his Section 924(c)
convictions under Johnson v. United States, 135 S. Ct. 2551 (2015), thereby implicating
28 U.S.C. § 2255(f)(3).
Section 2255 proceedings are governed by a one-year statute of limitations. See
ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT OF 1996, Pub.L. 104-132, 110 Stat.
1214 (1996) (the “AEDPA”), codified at 28 U.S.C. § 2255(f). The statute provides that
the limitations period shall run from the latest of –
the date on which the judgment of conviction becomes final;
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;
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
the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of due
The one-year limitations period is also subject to equitable tolling in “rare and
exceptional circumstances.” See, e.g., United States v. Riggs, 314 F.3d 796, 800 n.9 (5th
Cir. 2002) (citing Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998)).
“Equitable tolling applies principally where the plaintiff is actively
misled by the defendant about the cause of action or is prevented in some
extraordinary way from asserting his rights.” Coleman v. Johnson, 184
F.3d 398, 402 (5th Cir. 1999) (internal quotation marks and citation
omitted). “[T]he principles of equitable tolling ... do not extend to what is
at best a garden variety claim of excusable neglect.” Irwin v. Department
of Veterans Affairs, 498 U.S. 89, 96 (1990). Unfamiliarity with the legal
process does not justify equitable tolling. Turner v. Johnson, 177 F.3d
390, 392 (5th Cir. 1999).
United States v. Kirkham, 367 F. App’x 539, 541 (5th Cir. 2010) (per curiam).
But “a litigant is entitled to equitable tolling of a statute of limitations only if
the litigant establishes two elements: ‘(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way and
prevented timely filing.’” Menominee Indian Tribe of Wis. v. United States, 136 S. Ct.
750, 755 (2016) (quoting Holland v. Florida, 560 U.S. 631, 649 (2010)). The United
States Supreme Court recently reaffirmed “that the second prong of the equitable
tolling test is met only where the circumstances that caused a litigant’s delay are both
extraordinary and beyond its control.” Id. at 756 (emphasis in original).
The Supreme Court also has determined that the AEDPA statute of limitations
can be overcome by a showing of “actual innocence.” See McQuiggin v. Perkins, 133 S.
Ct. 1924, 1928 (2013). But the actual innocence gateway is only available to a
petitioner who presents “‘evidence of innocence so strong that a court cannot have
confidence in the outcome of the trial unless the court is also satisfied that the trial
was free of nonharmless constitutional error.’” Id. at 1936 (quoting Schlup v. Delo, 513
U.S. 298, 316 (1995)). That is, the new, reliable evidence must be sufficient to persuade
the Court that “‘no juror, acting reasonably, would have voted to find him guilty beyond
a reasonable doubt.’” Id. at 1928 (quoting Schlup, 513 U.S. at 329); see also Johnson
v. Hargett, 978 F.2d 855, 859-60 (5th Cir. 1992) (“The Supreme Court has made clear
that the term ‘actual innocence’ means factual, as opposed to legal, innocence – ‘legal’
innocence, of course, would arise whenever a constitutional violation by itself requires
reversal, whereas ‘actual’ innocence, as the Court stated in McCleskey [v. Zant, 499
U.S. 467 (1991)], means that the person did not commit the crime.” (footnotes omitted;
emphasis in original)).
In Johnson v. United States, 135 S. Ct. 2551 (2015), the Supreme Court held
“that imposing an increased sentence under the residual clause of the Armed Career
Criminal Act” (the “ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii) – which clause then defined
“violent felony” as “involv[ing] conduct that presents a serious potential risk of physical
injury to another” – “violates the Constitution’s guarantee of due process,” 135 S. Ct.
at 2563; see also id. (“Today’s decision does not call into question application of the Act
to the four enumerated offenses, or the remainder of the Act’s definition of a violent
Because “Johnson affected the reach of the underlying statute[, the ACCA,]
rather than the judicial procedures by which the statute is applied,” Johnson is “a
substantive decision and so has retroactive effect under Teague[ v. Lane, 489 U.S. 288
(1989),] in cases on collateral review.” Welch v. United States, 136 S. Ct. 1257, 1265
(2016). Therefore, if Hobbs were challenging a conviction and sentence that implicated
the ACCA’s residual clause, 28 U.S.C. § 2255(f)(3) could operate to make the current
motion timely if such a motion was filed within one year from the date Johnson was
decided. See Dodd v. United States, 545 U.S. 353 (2005) (Section 2255(f)(3)’s one-year
period begins to run on the date on which the Supreme Court “initially recognized” the
right asserted, not the date on which that right is made retroactively applicable).
But Hobbs’s collateral challenge does not implicate the ACCA’s residual clause.
Instead, he challenges, pursuant to Johnson, his convictions under Section 924(c)(1)
and (2), related to charges of obstruction of commerce by robbery (or Hobbs Act
robbery), in violation of 18 U.S.C. § 1951(a).
Hobbs does seek to extend Johnson’s holding outside the underlying statute.
But, because this is his initial Section 2255 motion, its timeliness under Section
2255(f)(3) “‘does not require that the retroactivity determination’” – that is, the
determination that Johnson’s holding reaches, retroactively, beyond the ACCA’s
residual clause – “‘be made by the Supreme Court itself.’” United States v. Olvera, 775
F.3d 726, 730 n.11 (5th Cir. 2015) (quoting United States v. Lopez, 248 F.3d 427, 432
(5th Cir. 2001), and distinguishing Section 2255(f)(3) from a requirement imposed by
28 U.S.C. § 2255(h)(2), applicable to second or successive Section 2255 motions); see
also In re Fields, 826 F.3d 785, 786-87 (5th Cir. 2016) (per curiam) (refusing to
preliminarily authorize, under Section 2255(h)(2), a successive Section 2255 motion
presenting a Johnson-based challenge to 28 U.S.C. § 924(c)(3)(B) because, “even if
Johnson does apply to that provision, the Supreme Court has not addressed whether
this arguably new rule of criminal procedure applies retroactively to cases on collateral
Regardless, the definition of “violent felony” under the ACCA’s residual clause
is substantially different than the definition of “crime of violence” used in Section
924(c). See 18 U.S.C. § 924(c)(3) (defining “crime of violence” as a felony that either “(A)
has as an element the use, attempted use, or threatened use of physical force against
the person or property of another, or (B) that by its nature, involves a substantial risk
that physical force against the person or property of another may be used in the course
of committing the offense”). And that definition is identical to the definition of “crime
of violence” in 18 U.S.C. § 16(b), a provision that the United States Court of Appeals
for the Fifth Circuit has held “is not unconstitutionally vague” in light of Johnson.
United States v. Gonzalez-Longoria, 831 F.3d 670, 672 (5th Cir. 2016) (en banc); see 18
U.S.C. § 16(b) (“The term ‘crime of violence’ means – (a) an offense that has as an
element the use, attempted use, or threatened use of physical force against the person
or property of another, or (b) any other offense that is a felony and that, by its nature,
involves a substantial risk that physical force against the person or property of another
may be used in the course of committing the offense.”); but see Lynch v. Dimaya, No.
15-1498, 137 S. Ct. 31 (2016) (granting certiorari review to decide whether Section
16(b), as incorporated into the Immigration and Nationality Act’s provisions governing
an alien’s removal from the United States, is unconstitutionally vague).
But, even if this Court were to determine that Johnson’s invalidation of the
ACCA’s residual clause should be extended to Section 924(c)(3)(B), such an extension
would not benefit Hobbs because his underlying “crime of violence” – Hobbs Act
robbery, in which the statutory definition of “robbery” is “the unlawful taking or
obtaining of personal property from the person or in the presence of another, against
his will, by means of actual or threatened force, or violence, or fear of injury,
immediate or future, to his person or property, or property in his custody or possession,
or the person or property of a relative or member of his family or of anyone in his
company at the time of the taking or obtaining,” 18 U.S.C. § 1951(b) – does “not contain
language similar to the provision that the Supreme Court found unconstitutionally
vague in Johnson, and so Johnson has no bearing on” that offense, In re Lott, 838 F.3d
522, 523 (5th Cir. 2016) (per curiam) (“[T]he bank robbery and conspiracy to obstruct
interstate commerce by robbery statutes that Lott was convicted under do not contain
language similar to the provision that the Supreme Court found unconstitutionally
vague in Johnson, compare Johnson, 135 S. Ct. at 2555-57, with 18 U.S.C. § 2113(a)
(bank robbery), and 18 U.S.C. § 1951 (conspiracy to obstruct interstate commerce by
robbery), and so Johnson has no bearing on them.”).
Indeed, the definition of a Hobbs Act robbery fits under Section 924(c)’s force
clause, not its residual clause. See, e.g., In re Fleur, 824 F.3d 1337, 1340 (11th Cir.
2016) (per curiam) (“Fleur’s companion conviction for Hobbs Act robbery, which was
charged in the same indictment as the § 924(c) count, clearly qualifies as a ‘crime of
violence’ under the use-of-force clause in § 924(c)(3)(A).”); United States v. Robinson,
844 F.3d 137, 144 (3d Cir. 2016) (“The definition of Hobbs Act robbery borrows
conceptually, if not linguistically, from § 924(c)(3)(A)’s definition of ‘crime of violence.’
Both definitions refer to the use or threatened use of force against person or property,
and the robbery definition goes so far as to include the term ‘violence.’”); United States
v. Reed, 187 F. Supp. 3d 743, 748-49 (W.D. La. 2016) (“Many other courts to reach the
issue have found that Hobbs Act robbery falls within the force clause as well.”
Therefore, because Hobbs’s underlying offenses are “crimes of violence” under
Section 924(c)’s force clause, which does not contain language remotely similar to
language in a separate statute that Johnson struck down as unconstitutionally vague,
Hobbs’s Section 2255 motion is not timely under Section 2255(f)(3). And neither
equitable tolling nor the narrow actual-innocence exception save Hobbs’s motion from
being time-barred under Section 2255(f).
Upon review of the motion to vacate and the files and records of this case, an
evidentiary hearing appears unnecessary. No evidentiary hearing is required if “the
motion and the files and records of the case conclusively show that the prisoner is
entitled to no relief.” 28 U.S.C. § 2255(b). In this instance, the matters reviewed by the
Court conclusively show that Hobbs is entitled to no relief.
Certificate of Appealability
Considering the record in this case and pursuant to Federal Rule of Appellate
Procedure 22(b), Rule 11(a) of the Rules Governing §§ 2254 and 2255 proceedings, and
28 U.S.C. § 2253(c), the Court denies a certificate of appealability. Hobbs has failed to
show (1) that reasonable jurists would find this Court’s “assessment of the
constitutional claims debatable or wrong,” or (2) that reasonable jurists would find “it
debatable whether the petition states a valid claim of the denial of a constitutional
right” and “debatable whether [this Court] was correct in its procedural ruling.” Slack
v. McDaniel, 529 U.S. 473, 48 (2000).
In the event Hobbs elects to file a notice of appeal, the Court notes that he will
need to pay the appellate filing fee or submit a motion to proceed in forma pauperis.
The government’s motion to dismiss is granted. And the Court dismisses this
Section 2255 action as barred by limitations.
DATED: January 18, 2017.
UNITED STATES DISTRICT JUDGE
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