United States District Court, E.D. Tennessee
A. VARLAN, CHIEF UNITED STATES DISTRICT JUDGE
the Court is Petitioner's pro se motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §
2255 [Doc. 185]. He bases his request for relief on
Johnson v. United States, 135 S.Ct. 2551 (2015), in
which the Supreme Court held that the residual clause of the
Armed Career Criminal Act (“ACCA”) was
unconstitutionally vague [Id.]. The United States
responded in opposition [Doc. 186]. Petitioner did not file a
reply and the time for doing so has now passed. E.D. Tenn.
L.R. 7.1, 7.2. Also before the Court is Petitioner's pro
se motion to supplement the record with additional case law
in support of his challenge [Doc. 187]. For the following
reasons, the motion for leave to supplement [Doc. 187] will
be GRANTED and amended petition [Docs. 185, 187] will be
DENIED and DISMISSED WITH PREJUDICE.
2, 2012, Petitioner pled guilty to committing Hobbs Act
robbery, in violation of 18 U.S.C. § 1951, and
discharging a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c) [Docs. 67,
118]. The Court imposed an aggregate term of 166 months'
imprisonment-46 months' incarceration for the Hobbs Act
robbery and 120 months' incarceration for the §
924(c) offense [Doc. 118]. Petitioner appealed, but the Sixth
Circuit affirmed his conviction and sentence on direct appeal
27, 2016, Petitioner filed the instant petition for
collateral relief seeking vacatur of his § 924(c)
conviction in light of Johnson [Doc.
185]. He supplemented the original petition with
additional authority on August 19, 2016 [Doc. 187]. The
United States responded in opposition to any form of
collateral relief on July 27, 2016 [Doc. 186].
MOTION FOR LEAVE TO SUPPLEMENT PETITION
addition to the original petition, this Court is in
possession of a motion for leave to supplement the §
2255 motion with additional authority in favor of relief
[Doc. 187]. Review of that filing reveals that all of the
arguments and authority raised therein relate back to the
timely submitted petition for collateral relief. See
Fed. R. Civ. P. 15(c)(2) (explaining that an amendment
“relates back” if it “ar[i]se[s] out of the
[same] conduct, transaction, or occurrence set forth or
attempted to be set forth in the original pleading”).
The motion [Doc. 187] will be GRANTED; the contents of the
same will be considered by this Court during resolution of
Petitioner's collateral challenge [Docs. 185, 187].
appears to argue that the Johnson decision
invalidated the similarly-worded residual clause in §
924(c)(3)(B), thereby removing Hobbs Act robbery from the
list of “crimes of violence” sufficient to
support a conviction under § 924(c)(1)(A) [Docs. 185,
187 (arguing that he is entitled to vacatur of his §
924(c) conviction)]. His argument fails for two reasons.
binding Sixth Circuit precedent holds that while
Johnson invalidated the residual provision of the
Armed Career Criminal Act (“ACCA”), 18 U.S.C.
924(e), and identically worded clause in Section 4B1.2 of the
United States Sentencing Guidelines, §
924(c)(3)(B)'s definition of crime of violence remains
unaffected. See United States v. Pawlak, 822
F.3d 902, 911 (6th Cir. 2016) (concluding “rationale of
Johnson applies equally” to the
Guidelines' definition of crime of violence); United
States v. Taylor, 814 F.3d 340, 376-79 (6th Cir. 2016)
(recognizing at least four “significant
differences” between the residual clause in §
924(c)(3)(B) and the ACCA's residual clause and noting
“the argument that Johnson effectively
invalidated [the former] is . . . without merit”). As
such, his Hobbs Act robbery remains a crime of violence
capable of supporting a conviction under § 924(c)(1)(A).
even if Johnson's reasoning could be used to
invalidate § 924(c)(3)(B)'s residual clause,
Petitioner's conviction for Hobbs Act robbery would
remain a crime of violence under the provision because it
qualifies under the use-of-physical-force clause contained in
§ 924(c)(3)(A). An offense qualifies as a crime of
violence if it “has as an element the use, attempted
use, or threatened use of physical force against the person
or property of another.” 18 U.S.C. § 924(c)(3)(A).
Petitioner's conviction for Hobbs Act robbery, which by
definition involves the taking of property “by means of
actual or threatened force, or violence, or fear of injury,
” 18 U.S.C. § 1951(b)(1), categorically falls
within the scope of that provision. See, e.g.,
In re Fleur, No. 16-12299, 2016 WL 3190539, at *3
(11th Cir. June 8, 2016) (finding, post-Johnson,
that Hobbs Act robbery categorically qualifies as a crime of
violence under the use-of-physical-force clause in 18 U.S.C.
§ 924(c)(3)(A)); United States v. Howard, No.
15-10042, 2016 WL 2961978, at *1 (9th Cir. May 23, 2016)
(same); accord United States v. House, No. 14-3011,
2016 WL 3144735, at *3 (8th Cir. June 2016) (finding that
Hobbs Act robbery categorically qualifies as a “serious
violent felony” under 18 U.S.C. §
3559(c)(2)(F)(ii)'s use-of-physical-force clause);
United States v. McBride, No. 15-3759, 2016 WL
3209496, at *2 (6th Cir. June 10, 2016) (finding that federal
bank robbery, in violation of 18 U.S.C. § 2113(a), which
can be committed “by force and violence, or by
intimidation, ” falls within the Section 4B1.2(a)'s
use-of-physical-force clause); United States v.
Mitchell, 743 F.3d 1054, 1058-60 (6th Cir. 2014)
(finding that Tennessee robbery, which can be committed
“by violence or putting the person in fear, ”
categorically qualifies as a violent felony under the
ACCA's use-of-physical-force clause). In light of the
foregoing, Johnson is inapposite and thus cannot
operate as a basis for relief.
reasons discussed, Petitioner's request for leave to
supplement [Doc. 187] will be GRANTED and amended § 2255
motion [Docs. 185, 187] will be DENIED and DISMISSED WITH
PREJUDICE. The Court will CERTIFY any appeal from this action
would not be taken in good faith and would be totally
frivolous. Therefore, this Court will DENY Petitioner leave
to proceed in forma pauperis on appeal. See
Rule 24 of the Federal Rules of Appellate Procedure.
Petitioner having failed to make a substantial showing of the
denial of a ...