United States District Court, E.D. Tennessee, Knoxville
W. PHILLIPS SENIOR 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. 31]. He bases his request for collateral 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 replied in turn [Doc. 34]. For the reasons below,
Petitioner's § 2255 motion [Doc. 31] will be
DENIED and DISMISSED WITH
2009, Petitioner pled guilty to, and was subsequently
convicted of, two Hobbs Act robberies, in violation of 18
U.S.C. § 1951; and brandishing a firearm during and in
relation to a crime of violence, in violation of 18 U.S.C.
§ 924(c) [Doc. 29]. On April 8, 2010, this Court
sentenced Petitioner to an aggregate 156 month term of
imprisonment-concurrent 72-month terms for the Hobbs Act
robberies and a consecutive 84-month term for the §
924(c) offense [Id.]. No direct appeal was taken.
More than six years later-on June 9, 2016-Petitioner filed
the instant collateral challenge based on the
Johnson decision [Doc. 31].
STANDARD OF REVIEW
obtain relief under 28 U.S.C. § 2255, Petitioner must
demonstrate “(1) an error of constitutional magnitude;
(2) a sentence imposed outside the statutory limits; or (3)
an error of fact or law . . . so fundamental as to render the
entire proceeding invalid.” Short v. United
States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting
Mallett v. United States, 334 F.3d 491, 496-97 (6th
Cir. 2003)). He “must clear a significantly higher
hurdle than would exist on direct appeal” and establish
a “fundamental defect in the proceedings which
necessarily results in a complete miscarriage of justice or
an egregious error violative of due process.” Fair
v. United States, 157 F.3d 427, 430 (6th Cir. 1998).
extent Petitioner argues that the Johnson decision
invalidated the residual clause in § 924(c)(3)(B)'s
definition of crime of violence and that the absence of that
provision requires vacatur of his conviction under §
924(c)(1)(A), the argument fails for two reasons.
binding Sixth Circuit precedent holds that while
Johnson invalidated the residual provision of the
ACCA 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 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 that
offense 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 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 is inapposite and cannot operate
as a basis for collateral relief.
extent that Petitioner challenges the validity of his plea
agreement [Doc. 34 pp. 5- 11], bald and at times incoherent
assertions of “fraud” are insufficient to
overcome the presumed veracity of the contradictory
statements that he made during the plea colloquy. Compare
Baker v. United States, 781 F.2d 85, 90 (6th Cir. 1986)
(finding the defendant was bound by statements he made in
response to the court's plea colloquy), and Ramos v.
Rogers, 170 F.3d 560, 566 (6th Cir. 1999) (finding the
petitioner bound to plea colloquy responses despite some
evidence that contradicted statements made therein), with
Blackledge v. Allison, 431 U.S. 63, 74 (1977) (finding
summary dismissal inappropriate where the petitioner provided
specific detailed terms of the alleged broken promise; when,
where, and by whom such promise was made; and the identity of
a witness to that conversation).
reasons discussed, Petitioner's § 2255 motion [Doc.
31] 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 Appellate Procedure.