Gonzalez v. United States of America

Filing 2

SCREENING ORDER signed by Judge J.P. Stadtmueller on 5/11/2018: DENYING 1 Petitioner's Motion to Vacate, Set Aside or Correct Sentence Pursuant to Section 2255; DISMISSING CASE with prejudice; and DENYING Certificate of Appealability. (cc: all counsel, via mail to Joshua Gonzalez at Oxford FCI)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOSHUA GONZALEZ,
Petitioner,
v.

Case No. 18-CV-717-JPS
Crim. Case No. 15-CR-51-2-JPS

UNITED STATES OF AMERICA,

ORDER

Respondent.
Petitioner Joshua Gonzalez (“Gonzalez”) pleaded guilty to three
counts of Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), and one
count of brandishing a firearm in connection with a crime of violence, in
violation of 18 U.S.C. § 924(c)(1)(A)(ii). United States v. Joshua Gonzalez, 15CR-51-2-JPS (E.D. Wis.) (Gonzalez’s “Criminal Case”), (Docket #160). On
January 15, 2016, the Court sentenced him to just over eleven years’
imprisonment. Id. Gonzalez did not appeal his convictions or sentence.
Gonzalez filed a motion pursuant to 28 U.S.C. § 2255 to vacate his
Section 924(c) on May 7, 2018. (Docket #1). That motion is now before the
Court for screening:
If it plainly appears from the motion, any attached
exhibits, and the record of the 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. If
the motion is not dismissed, the judge must order the United
States Attorney to file an answer, motion, or other response
within a fixed time, or to take other action the judge may
order.
Rule 4(b), Rules Governing Section 2255 Proceedings.

Generally, the Court begins the screening process by examining the
timeliness of the motion and whether the claims therein are procedurally
defaulted. Indeed, Gonzalez’s motion appears to be both untimely and
procedurally defaulted. The Court need not address those matters,
however, because Gonzalez’s sole ground for relief is plainly meritless.
Gonzalez says that under the Supreme Court’s recent decision in Sessions v.
Dimaya, 138 S.Ct. 1204 (2018), his Section 924(c) conviction violate his due
process rights. Dimaya addressed the criminal code’s definition of a “crime
of violence,” located in 18 U.S.C. § 16. Section 16 has two parts. Section
16(a), known as the “elements” clause, states that a crime is a “crime of
violence” if it has as an element the use of physical force. 18 U.S.C. § 16(a).
Section 16(b), known as the “residual” clause, says that a crime which does
not fall within Section 16(a) may nevertheless be considered a “crime of
violence” if it is a felony and “by its nature, involves a substantial risk that
physical force” may be used to commit the crime. Id. § 16(b). Dimaya held
that Section 16(b) is unconstitutionally vague. Dimaya, 138 S.Ct. at 1223.
Section 924(c)(3) defines “crime of violence” for the purposes of that
statute, and uses similar “elements” and “residual” clauses. 18 U.S.C. §
924(c)(3)(A) (elements clause) & (B) (residual clause). Gonzalez asserts that
under Dimaya’s logic, Section 924(c)(3)(B) must also be struck down. The
problem for Gonzalez is that in his case, any concern with Section
924(c)(3)(B) clause is academic. The Court of Appeals held just last year:
[W]e have recently decided that Hobbs Act robbery
indeed qualifies as a “crime of violence” under § 924(c)
because it “has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another.” United States v. Anglin, [846 F.3d 954, 964
(7th Cir. 2017)] (quoting 18 U.S.C. § 924(c)(3)(A)). The Hobbs
Act defines robbery in relevant part as “the unlawful taking
Page 2 of 5

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.” 18 U.S.C. § 1951(b)(1).
Because one cannot commit Hobbs Act robbery without using
or threatening physical force, we held that Hobbs Act robbery
qualifies as a predicate for a crime-of-violence conviction.
Anglin, [846 F.3d at 965].
United States v. Rivera, 847 F.3d 847, 848–49 (7th Cir. 2017). Thus,
“[Gonzalez’s] Hobbs Act robbery conviction serves as a valid predicate for
his Section 924(c) conviction by way of the elements clause of Section
924(c)(3), not the residual clause.” Jones v. United States, 17-CV-933-JPS, 2017
WL 3016819, at *2 (E.D. Wis. July 14, 2017). Gonzalez also makes a passing
argument that Hobbs Act robbery does not fall within the elements clause,
but this Court is not at liberty to disagree with Rivera and Anglin.
Because Gonzalez is plainly not entitled to relief on the sole ground
presented in his motion, the Court is compelled to deny the motion and
dismiss this action with prejudice. Under Rule 11(a) of the Rules Governing
Section 2255 Cases, “the district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” To
obtain a certificate of appealability under 28 U.S.C. § 2253(c)(2), Gonzalez
must make a “substantial showing of the denial of a constitutional right”
by establishing 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 citations omitted). No reasonable jurists could debate
whether Gonzalez’s motion presented a viable ground for relief. Dimaya is
irrelevant, and Rivera and Anglin completely foreclose his claim. As a
Page 3 of 5

consequence, the Court is compelled to deny a certificate of appealability
as to Gonzalez’s motion.
Finally, the Court closes with some information about the actions
that Gonzalez may take if he wishes to challenge the Court’s resolution of
this case. This order and the judgment to follow are final. A dissatisfied
party may appeal this Court’s decision to the Court of Appeals for the
Seventh Circuit by filing in this Court a notice of appeal within 30 days of
the entry of judgment. See Fed. R. App. P. 3, 4. This Court may extend this
deadline if a party timely requests an extension and shows good cause or
excusable neglect for not being able to meet the 30-day deadline. See Fed. R.
App. P. 4(a)(5)(A). Moreover, under certain circumstances, a party may ask
this Court to alter or amend its judgment under Federal Rule of Civil
Procedure 59(e) or ask for relief from judgment under Federal Rule of Civil
Procedure 60(b). Any motion under Federal Rule of Civil Procedure 59(e)
must be filed within 28 days of the entry of judgment. The Court cannot
extend this deadline. See Fed. R. Civ. P. 6(b)(2). Any motion under Federal
Rule of Civil Procedure 60(b) must be filed within a reasonable time,
generally no more than one year after the entry of the judgment. The court
cannot extend this deadline. See id. A party is expected to closely review all
applicable rules and determine what, if any, further action is appropriate in
a case.
Accordingly,
IT IS ORDERED that Petitioner’s motion to vacate, set aside, or
correct his sentence pursuant to Section 2255 (Docket #1) be and the same
is hereby DENIED;
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED with prejudice; and
Page 4 of 5

IT IS FURTHER ORDERED that a certificate of appealability be and
the same is hereby DENIED.
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 11th day of May, 2018.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

Page 5 of 5