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ruling that a conviction for Hobbs Act robbery was not affected by Johnson
Summary of this case from United States v. RobersonOpinion
CIVIL NO. 4:16cv5 [ORIGINAL CRIMINAL NO. 4:09cr81–15]
02-09-2016
Raymond Ernest Brown, Petitioner, v. United States of America, Respondent.
Raymond Ernest Brown, pro se.
Raymond Ernest Brown, pro se.
MEMORANDUM FINAL ORDER
REBECCA BEACH SMITH, CHIEF JUDGE
This matter comes before the court on the Petitioner's pro se “Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence” (“Motion”) and accompanying Memorandum in Support, filed on February 2, 2015. ECF Nos. 639, 540. On October 13, 2011, the Petitioner pled guilty to Counts Thirty-three and Thirty-five of the Third Superseding Indictment. Count Thirty-three charged the Petitioner with Robbery Affecting Interstate Commerce (“Hobbs Act robbery”), in violation of 18 U.S.C. § 1951(a). Count Thirty-five charged the Petitioner with Discharging, Brandishing, Carrying, and Possessing a Firearm During and in Relation to, and in Furtherance of, a Crime of Violence, in violation of 18 U.S.C. § 924(c)(1)(A). On January 18, 2012, after adjudging the Petitioner guilty, this court sentenced the Petitioner to three hundred twenty (320) months imprisonment and five (5) years supervised release. ECF No. 508. The Petitioner did not appeal his conviction, and the judgment accordingly became final fourteen (14) days after it was entered. Fed. R. App. P. 4(b)(1)(A).
The Petitioner filed the instant Motion pursuant to 28 U.S.C. § 2255(f)(3), which provides that the one-year limitation period to file motions may begin from “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” Specifically, the Petitioner argues that the holding in Johnson v. United States, –––U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), recognized a new right that is retroactively applicable on collateral review, and that this right invalidates his conviction under 18 U.S.C. § 924(c)(1)(A) on Count Thirty-five. Mem. Supp. at 1.
In Johnson, the Supreme Court struck down the residual clause of the Armed Career Criminal Act of 1984 (“ACCA”), in 18 U.S.C. § 924(e)(2)(B)(ii), because it was unconstitutionally vague. Johnson, 135 S.Ct. at 2563. The statute under which the Petitioner was convicted for Count Thirty-five defines a “crime of violence” as 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.
18 U.S.C. § 924(c)(3). The Petitioner argues that Hobbs Act robbery is not a crime of violence under the “force clause,” Section 924(c)(3)(A), but instead qualifies only under the “residual clause,” Section 924(c)(3)(B). Mem. Supp. at 4. Further, he argues that this residual clause is analogous to the one declared void in Johnson. Id. If the Petitioner's crime falls under the force clause, however, Johnson's ruling on the residual clause of the ACCA would not be applicable, and the court could dismiss the motion as untimely. See 28 U.S.C. § 2255(f). Thus, as an initial matter, the court must determine whether the force clause applies to Hobbs Act robbery.
This court has consistently found that Hobbs Act robbery is a “crime of violence” under the force clause. See United States v. Bennett , No. 3:15cr134, 2016 WL 354753 (E.D.Va. Jan. 27, 2016) ; United States v. Walker, No. 3:15cr49, 2016 WL 153088 (E.D.Va. Jan. 12, 2016) ; United States v. Wilson, No. 4:15cr21 (E.D.Va. Dec. 8, 2015); United States v. McDaniels, No. 1:15cr171, 147 F.Supp.3d 427, 2015 WL 7455539 (E.D.Va. Nov. 23, 2015) ; United States v. Wyche, No. 2:15cr97 (E.D.Va. Nov. 9, 2015); United States v. Waites, No. 2:15cr110 (E.D.Va. Oct. 30, 2015); United States v. Hunter, No. 2:12crl24, 2015 WL 6443084 (E.D.Va. Oct. 23, 2015) ; United States v. Standberry, No. 3:15crl02, 139 F.Supp.3d 734, 2015 WL 5920008 (E.D.Va. Oct. 9, 2015). Indeed, “[a]mple case law confirms the conclusion that Hobbs Act robbery can serve as a crime of violence as defined by § 924(c)(3)(A).” McDaniels, 147 F.Supp.3d at 434, 2015 WL 7455539, at *6. The Petitioner has not presented any arguments warranting departure from this case law, and the court reaffirms the finding here.
In relevant part, the statute for Hobbs Act robbery states:
(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.
(b) As used in this section—
(1) The term “robbery” means the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.
18 U.S.C. § 1951.
Because Hobbs Act robbery is a crime of violence under the force clause of § 924(c)(3)(a), the Petitioner's Motion fails to identify a newly recognized right to relief per § 2255(f)(3). And because this is the only alleged basis for jurisdiction over the Motion, it is untimely. Accordingly, the Motion is DENIED.
Petitioner concedes the timeliness issue, other than his retroactivity argument under Johnson.
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The Petitioner is ADVISED that he may appeal from this Memorandum Final Order by forwarding, within sixty (60) days of the entry date of this Memorandum Final Order, a written notice of appeal to the Clerk of the United States District Court at 2400 West Avenue, Newport News, Virginia 23607. The court declines to issue a certificate of appealability for the reasons stated herein.
The Clerk is DIRECTED to send a copy of this Memorandum Final Order to the Petitioner and the United States Attorney at Newport News.