Towns v. United States of America

Filing 2

SCREENING ORDER signed by Judge J.P. Stadtmueller on 6/11/2018: 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 Jamere Towns at Atwater USP)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JAMERE TOWNS,
Petitioner,
v.

Case No. 18-CV-856-JPS
Crim. Case No. 13-CR-17-4-JPS

UNITED STATES OF AMERICA,

ORDER

Respondent.
Petitioner Jamere Towns (“Towns”) pleaded guilty to nine 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. Jamere Towns, 13-CR-17-4-JPS
(E.D. Wis.) (Towns’ “Criminal Case”), (Docket #125). On December 3, 2013,
the Court sentenced him to forty years’ imprisonment. Id., (Docket #182).
Towns did not appeal his convictions or sentence. He filed a motion to
vacate his sentence pursuant to 28 U.S.C. § 2255 on November 24, 2014,
which was finally denied on December 23, 2015. Jamere Towns v. United
States, 14-CV-1481-JPS, (Docket #33). Later, Towns sought leave from the
Seventh Circuit to file a second motion to vacate, which was denied.
Criminal Case, (Docket #234).
Before the Court is Towns’ second motion to vacate his convictions.
(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, Towns’ motion appears to be both untimely and
procedurally defaulted. The Court need not address those matters,
however, because both of Towns’ grounds for relief are plainly meritless.1
Both grounds attack his Section 924(c) conviction.2 As noted above, Towns
was convicted under Section 924(c)(1)(A)(ii) for brandishing a firearm
during a crime of violence. In Ground One, Towns questions whether
Hobbs Act robbery still qualifies as a crime of violence. (Docket #1 at 4).
Ground Two is not really a separate ground at all; it simply states the
conclusion that if Ground One is correct, then Towns’ Section 924(c)
conviction lacks the required predicate and must be vacated. Id. at 5.
As the basis for both grounds, Towns cites to a recent U.S. Supreme
Court decision, Sessions v. Dimaya, 138 S.Ct. 1204 (2018). Dimaya addressed
the criminal code’s definition of a “crime of violence,” located in 18 U.S.C.

The Court could also dismiss this action for two other reasons. First,
Towns has lied in his petition, claiming that he has never filed any other motions
challenging his sentence. (Docket #1 at 2). Indeed, he asserts that the instant motion
“is my initial collateral appeal.” Id. at 3. This is demonstrably false and could be
sanctioned by dismissal of the motion. Second, because the instant motion is
clearly not Towns’ first, he should have applied for leave to file it with the Court
of Appeals, as he did back in 2016. Nevertheless, because Towns’ motion is entirely
without merit, the Court need not delve into these other bases for dismissal.
1

In his request for relief, Towns asks that his Hobbs Act robbery convictions
also be vacated. (Docket #1 at 12). As explained infra, his grounds for relief bear
only on the validity of his Section 924(c) conviction.
2

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§ 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). The implication of
Towns’ motion is that under Dimaya’s logic, Section 924(c)(3)(B) must also
be struck down. The problem for Towns is that in his case, any concern with
Section 924(c)(3)(B) 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
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, Hobbs Act
robbery does indeed qualify as a crime of violence. Further, “[Towns’]

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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). Thus, the vagueness of Section 924(c)(3)(B) has
no bearing on the validity of Towns’ firearm brandishing conviction.3
Because Towns is plainly not entitled to relief on both grounds
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), Towns
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

Towns’ motion also references a case captioned “Antwon vs. Jenkins” as
further support for his grounds for relief. (Docket #1 at 4, 5). He states that the case
is one from the Seventh Circuit and that an opinion was issued therein in 2018. Id.
The Court has been unable to locate a case with that caption from this year. It did,
however, find a case called United States v. Antwon Jenkins, 849 F.3d 390 (7th Cir.
2017). There, the Court of Appeals determined that kidnapping was not a crime of
violence under the elements or residual clauses. Id. at 393–94. An appeal was
taken, and just last month, the Supreme Court granted certiorari and summarily
vacated the Seventh Circuit’s opinion. United States v. Jenkins, Antwon, 2018 WL
2186183, at *1 (May 14, 2018). The Supreme Court remanded with instructions for
the Court of Appeals to “further consider[]” their position in light of Dimaya. Id. If
this is the case Towns intended to reference, it has no bearing on his motion; he
was convicted of robbery, not kidnapping. If he meant to cite some other case, it is
not accessible in any of the databases available to the Court.
3

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whether Towns’ motion presented a viable ground for relief. Dimaya is
irrelevant, and Rivera and Anglin completely foreclose his claim. As a
consequence, the Court is compelled to deny a certificate of appealability
as to Towns’ motion.
Finally, the Court closes with some information about the actions
that Towns 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;

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IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED with prejudice; and
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 June, 2018.
BY THE COURT:

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

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