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Banks v. United States

United States District Court, W.D. Tennessee, Western Division

July 17, 2019

SHAWN BANKS, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          SAMUEL H. MAYS, JR. UNITED STATES DISTRICT JUDGE

         Movant Shawn Banks filed a motion under 28 U.S.C. § 2255 on June 27, 2016. (ECF No. 1.) On September 18, 2018, Banks filed a motion under 28 U.S.C. § 2244 in the Sixth Circuit for an order authorizing this Court to consider a second or successive § 2255 motion. (ECF No. 10.) Noting that Banks' first § 2255 motion was still pending, the Sixth Circuit denied Banks' § 2244 motion and transferred it to this Court for consideration as a motion for leave to amend his pending § 2255 motion. (Id.) On June 10, 2019, the Court granted Banks' motion to amend his § 2255 motion and construed the proposed claims in Banks' § 2244 motion as his amended § 2255 claims. (ECF No. 12.)

         Before the Court is Banks' June 10, 2019 amended § 2255 motion. (Sixth Circuit No. 18-5977, Doc. 1.) The United States of America (the “Government”) responded on June 17, 2019. (ECF No. 13.) Banks' reply was due on July 1, 2019. (ECF No. 12.; see also Rule 5(d) of the Rules Governing Section 2255 Proceedings for the United States District Courts.) Instead of filing a reply, on July 8, 2019, Banks filed a motion requesting an extension of time to file a reply and a motion seeking the appointment of counsel. (ECF No. 14.)

         For the following reasons, Banks' amended § 2255 motion is DENIED. His motion requesting an extension of time and his motion seeking the appointment of counsel are DENIED AS MOOT.

         I. Background

         In 2011, Banks pled guilty to attempted Hobbs Act robbery in violation of 18 U.S.C. § 1951 (Count 1) and aiding and abetting the use and carrying of a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c) (Count 2). (No. 2:09-cr-20491, ECF No. 135.) The Court sentenced Banks to 197 months in prison and three years of supervised release. (Id.) Banks did not file an appeal.

         Banks filed his amended § 2255 motion on June 10, 2019, the date on which the Court granted Banks' motion to amend and construed the proposed claims in his § 2244 motion as his amended § 2255 claims.

         II. Analysis

         “A prisoner seeking relief under 28 U.S.C. § 2255 must allege either: (1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.” Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (quotation marks omitted).

         Banks challenges the validity of his conviction of aiding and abetting the use and carrying of a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c). Section 924(c) provides heightened criminal penalties for using or carrying a firearm “during and in relation to, ” or possessing a firearm “in furtherance of, ” any federal “crime of violence or drug trafficking crime.” § 924(c)(1)(A). The statute defines “crime of violence” in two subparts. Under § 924(c)(3), a “crime of violence” is “an offense that is a felony” and:

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) 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.

         Subpart (A) is known as the elements clause and subpart (B) is known as the residual clause. See United States v. Davis, 139 S.Ct. 2319, 2324 (2019).

         Banks contends that his Count 1 conviction of attempted Hobbs Act robbery does not qualify as a “crime of violence” under the elements clause of § 924(c)(3)(A). Banks further contends that the residual clause of § 924(c)(3)(B) is ...


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