Gonzalez, Joshua v. Marske, Matthew

Filing 2

ORDER that Petitioner Joshua Gonzalez's application under 28 U.S.C. § 2241 is DENIED. A certificate of appealability will not issue. Signed by District Judge William M. Conley on 10/5/2021. (kmd),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

JOSHUA GONZALEZ,
Petitioner,

OPINION AND ORDER

v.
18-cv-383-wmc
MATTHEW MARSKE, WARDEN,
Respondent.

Joshua Gonzalez, a federal prisoner incarcerated at the Federal Correctional
Institution in Oxford, Wisconsin, seeks post-conviction relief under 28 U.S.C. § 2241.
In particular, his petition is before the court for preliminary review under Rule 4 of the
Rules Governing Section 2254 Cases, which applies to petitions not brought under § 2254.
See Rule 1(b), Rules Governing Section 2254 cases. Under Rule 4, the court must dismiss
the petition if it plainly appears that petitioner is not entitled to relief. Since Gonzalez’s
§ 2241 is simply a rehash of a meritless motion to vacate that he brought earlier under 28
U.S.C. § 2255, the court must dismiss the petition.

BACKGROUND
In the Eastern District of Wisconsin, 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. Gonzalez, No. 15-CR-51-2-JPS, dkt. #94 (E.D. Wis. Sept. 4, 2015). On

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January 15, 2016, Judge J.P. Stadtmueller sentenced him a term of fifty-one months
incarceration on the Hobbs Act robberies, and an 84-month sentence for the § 924(c)
charge, to be served consecutive to the Hobbs Act term, since § 924(c) sets a mandatory
minimum consecutive sentence if the defendant uses, carries or brandishes a firearm during
a crime of violence as defined by § 924(c)(3). Id., dkt. #160, at 2.
Gonzalez did not appeal his convictions or sentence. Instead, on May 7, 2018,
Gonzalez challenged his sentence in a motion to vacate under 28 U.S.C. § 2255, arguing
that his Hobbs Act robbery did not qualify as a “crime of violence” for purposes of
§ 924(c)(3) in light of the United States Supreme Court’s decision in Sessions v. Dimaya,
138 S. Ct. 1204 (2018). Specifically, Gonzalez argued that the Dimaya court held the
definition of “crime of violence” from 18 U.S.C. § 16(b) is unconstitutionally vague,
removing his Hobbs Act robberies from that definition.
On May 11, 2018, the court denied his motion. Gonzalez v. United States, No. 18cv-717, 2018 WL 2185026 (E.D. Wis. May 11, 2018). As Judge Stadtmueller explained,
the Dimaya court deemed the definition of “crime of violence” in § 16(b) unconstitutionally
vague, the Court did not invalidate § 16(a), known as the “elements” clause, which parrots
the “elements” clause found in § 924(c)(A). He further noted the Court of Appeals for
the Seventh Circuit’s finding that a “Hobbs Act robbery is a ‘crime of violence’ within the
meaning of § 923(c)(3)(A)” in United States v. Anglin, 846 F.3d 954, 965 (7th Cir. 2017),
vacated on other grounds, Anglin v. United States, -- U.S. -- , 138 S. Ct. 126 (2017). Id. at
**1-2 (emphasis added). Thus, the court concluded that Gonzalez’s Hobbs Act robbery

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conviction served “as a valid predicate for his Section 924(c) conviction by way of the
elements clause of Section 924(c), not the residual clause.” Id. at *2. Gonzales did not
appeal the outcome of his § 2255 motion; instead, on May 18, 2018 -- a week after losing
his § 2255 petition -- Gonzalez filed his § 2241 petition in this court, simply repeating his
losing Dimaya argument.

OPINION
A federal prisoner challenging his federal conviction or sentence must do so on direct
appeal by filing a motion under 28 U.S.C. § 2255 in the district where he was convicted.
Unthank v. Jett, 549 F.3d 534, 534-35 (7th Cir. 2008); Kramer v. Olson, 347 F.3d 214, 217
(7th Cir. 2003). If a prisoner has already filed a § 2255 motion, he can pursue relief under
§ 2241 only if he can satisfy the mandates of 2255’s so-called “savings clause,” 28 U.S.C.
§ 2255(e).
The savings clause requires a prisoner filing a habeas corpus petition under § 2241
to show by motion that the remedy under § 2255 is inadequate or ineffective to test the
legality of his detention. Kramer, 347 F.3d at 217; Taylor v. Gilkey, 314 F.3d 832, 835
(7th Cir. 2002). More specifically, a prisoner seeking relief under the savings clause must
show three things: (1) he is relying on a new case involving statutory-interpretation,
rather than a new constitutional interpretation; (2) he is relying on a retroactive decision
that he could not have invoked in his first § 2255 motion; and (3) the sentence
enhancement must have been a grave enough error to be deemed a miscarriage of justice

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corrigible therefore in a habeas corpus proceeding. Brown v. Caraway, 719 F.3d 583, 586
(7th Cir. 2013) (citations omitted) (internal quotation marks omitted); see also Light v.
Caraway, 761 F.3d 809, 812-13 (7th Cir. 2014); Hill v. Werlinger, 695 F.3d 644, 648 (7th
Cir. 2012); United States v. Prevatte, 300 F.3d 792, 799-800 (7th Cir. 2002); In re Davenport,
147 F.3d 605, 610-11 (7th Cir. 1998).
Gonzalez’s Dimaya argument plainly fails at the first and third elements. Indeed,
since he relied on Dimaya in his § 2255 motion, he is not relying on a new case at all, and
Judge Stadtmueller’s opinion succinctly explains why the 84-month consecutive sentence
did not constitute an error, much less a miscarriage of justice. Accordingly, Gonzalez’s
petition will be denied without further discussion.
Under Rule 11 of the Rules Governing Section 2254 Cases (which can be applied
to cases under § 2241 as well), the court must issue or deny a certificate of appealability
when entering a final order adverse to a petitioner. The question is whether “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 quotations and citations omitted). Since reasonable jurists would not disagree
that Gonzalez’s claim must fail, the court will not issue petitioner a certificate of
appealability.

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ORDER
IT IS ORDERED that:
(1) Petitioner Joshua Gonzalez’s application under 28 U.S.C. § 2241 is DENIED.
(2) A certificate of appealability will not issue.
Entered this 5th day of October, 2021.
BY THE COURT:
/s/
______________________________________
WILLIAM M. CONLEY
District Judge

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