United States District Court, E.D. Tennessee
JAMES H. DAVIS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
Jordan 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. 32]. 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”), 18 U.S.C.
§ 924(e), was unconstitutionally vague [Id.].
The United States responded in opposition [Doc. 33].
Petitioner did not reply and the time for doing so has now
passed. E.D. Tenn. L.R. 7.1, 7.2. For the following reasons,
Petitioner's § 2255 motion [Doc. 32] will be DENIED
and DISMISSED WITH PREJUDICE.
2015, Petitioner pled guilty pursuant to a Rule 11(c)(1)(C)
plea agreement to, and was subsequently convicted of, six
Hobbs Act robberies, all in violation of 18 U.S.C. §
1951; and one count of brandishing a firearm during and in
relation to a crime of violence, in violation of 18 U.S.C.
§ 924(c) [Docs. 17, 27]. In accordance with the plea
agreement, Petitioner received an aggregate term of 300
months' imprisonment [Doc. 27 (noting that the pela
agreement involved dismissal of a second § 924(c) count,
which would have subjected Petitioner to an additional
twenty-five year term of incarceration)]. No direct appeal
was taken. On July 22, 2016, Petitioner filed the instant
request for vacatur of his § 924(c) conviction in light
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) [Doc. 32
(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, the Hobbs Act robberies remain crimes of violence
capable of supporting the conviction under §
even if Johnson's reasoning could be used to
invalidate § 924(c)(3)(B)'s residual clause,
Petitioner's convictions for Hobbs Act robbery would
remain crimes of violence under the provision because they
qualify 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 convictions 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 fall
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 does not apply and thus cannot
operate as a basis for relief.
reasons discussed, Petitioner's § 2255 motion [Doc.
32] 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 constitutional
right, a certificate of appealability SHALL NOT ISSUE. 28
U.S.C. § 2253; Rule 22(b) of the Federal Rules of
 This Court finds that it need not
determine whether Petitioner submitted the collateral
challenge within the one-year period under § 2255(f)
because, even if it were timely, the ...