Graham v. United States of America

Filing 3

ORDER signed by Judge J P Stadtmueller on 7/1/2020: DENYING 1 Petitioner's Motion to Vacate, Set Aside, or Correct His Sentence Pursuant to Section 2255; DISMISSING CASE with prejudice; and DENYING Certificate of Appealability. (cc: all counsel, via mail to Hiram Omar Graham at Manchester FCI)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
HIRAM OMAR GRAHAM,
Petitioner,
v.
UNITED STATES OF AMERICA,

Case No. 20-CV-961-JPS

ORDER

Respondent.
On February 14, 2018, petitioner Hiram Omar Graham (“Graham”)
pled guilty to six counts of Hobbs Act Robbery in violation of 18 U.S.C. §
1951, and one count of brandishing a firearm in violation of 18 U.S.C §
924(c)(1)(A)(ii). United States of America v. Graham, 17-CR-229-JPS, (Docket
#11). Graham was sentenced to 60 months of imprisonment on the robbery
charges, and 84 months on the brandishing charge, for a total prison term
of 144 months. Case No. 17-CR-229, (Docket #26). Graham’s sentence was
affirmed by the Seventh Circuit on March 18, 2019. Case No. 17-CR-229,
(Docket #40).
On June 26, 2020, Graham filed a motion pursuant to 28 U.S.C. § 2255
to vacate his 924(c) conviction. (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. The Court need not address those matters in this case, however,
because Graham’s sole ground for relief is plainly meritless. Graham
suggests that the Supreme Court’s recent decision in Davis v. United States,
139 S. Ct. 2319 (2019), warrants vacating his Section 924(c) conviction. See
generally (Docket #2).
To understand the import of Davis, one must first know a bit about
Section 924(c). That statute imposes sentences, carrying substantial
mandatory minimums for imprisonment, when a person uses a firearm
during the commission of a “crime of violence.” 18 U.S.C. § 924(c)(1)(A). A
“crime of violence” must always be a felony, and it must also fall within
one of two definitions. The first definition, known as the “elements” or
“force” clause, says that the subject crime must “[have] as an element the
use, attempted use, or threatened use of physical force against the person
or property of another[.]” Id. § 924(c)(3)(A). The second definition, known
as the “residual” clause, sweeps in any crime “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.” Id. § 924(c)(3)(B).
Davis invalidated the residual clause as being unconstitutionally vague.
Davis, 139 S. Ct. at 2336.
That ruling means little for those in the Seventh Circuit, as our own
Court of Appeals struck down the residual clause some time ago. United
States v. Cardena, 842 F.3d 959, 996 (7th Cir. 2016). Indeed, Davis also means
little for Graham himself. Hobbs Act Robbery has been found to fall within

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the elements clause, not the invalidated residual clause. United States v.
Anglin, 846 F.3d 954, 964–65 (7th Cir. 2017) (holding that Hobbs Act robbery
constitutes a “crime of violence” within the meaning of Section
924(c)(3)(A)). Thus, Graham’s 18 U.S.C. § 1951 convictions serve as a valid
predicate for the Section 924(c) conviction via the elements clause.
Graham argues that Hobbs Act Robbery does not necessarily
constitute a crime of violence, because Hobbs Act Robbery could feasibly
be conducted “with threatened de minimis force or no force at all” to
property, and therefore is not a “crime of violence.” (Docket #2 at 5). This
argument is contrary to controlling Seventh Circuit precedent. In Anglin,
for example, the Seventh Circuit explained that Hobbs Act Robbery
“necessarily requires using or threatening force,” and noted that the
defendant’s argument that “a robber hypothetically could put his victim in
‘fear of injury’ without using or threatening force” was “contrary to our
precedents.” 846 F.3d at 965. The Court is not empowered to overrule the
Seventh Circuit. Thus, because Graham is plainly not entitled to relief on
the 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), Graham 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
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omitted). No reasonable jurists could debate whether Graham’s motion
presented a viable ground for relief. Davis has no bearing on his convictions
or sentence, and this Court lacks authority to overturn Anglin. As a
consequence, the Court is compelled to deny a certificate of appealability
as to Graham’s motion. Finally, the Court closes with some information
about the actions that Graham 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 the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 1st day of July, 2020.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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