United States District Court, S.D. Indiana, Indianapolis Division
ENTRY DISMISSING MOTION TO VACATE, SET ASIDE, OR
CORRECT SENTENCE AND DENYING A CERTIFICATE OF
EVANS BARKER, JUDGE
petitioner, by counsel, filed a motion for relief pursuant to
28 U.S.C. § 2255 arguing that under Johnson v.
United States, 135 S.Ct. 2551 (2015) and Welch v.
United States, 136 S.Ct. 1257 (2016), his sentence was
unconstitutionally enhanced and he must be resentenced. On
March 3, 2017, petitioner's counsel was granted leave to
withdraw and the petitioner was given a period of time to
either voluntarily dismiss this action or to file a brief in
support of his § 2255 motion which states the basis for
his Johnson claim. That time has passed without a
response from the petitioner.
action is now primed for preliminary consideration pursuant
to Rule 4 of the Rules Governing Section 2255 Proceedings
for the United States District Courts. Rule 4 provides
that, “[i]f it plainly appears from the motion, and any
attached exhibits, and the record of prior proceedings that
the moving party is not entitled to relief, the judge must
dismiss the motion and direct the clerk to notify the moving
party.” Title 28 U.S.C. § 2255 permits a federal
court to grant relief “if it finds that the judgment
was rendered without jurisdiction, or that the sentence
imposed was not authorized by law or otherwise open to
collateral attack, or that there has been such a denial or
infringement of the constitutional rights of the prisoner as
to render the judgment vulnerable to collateral
attack.” The Supreme Court in Johnson held
that the so-called residual clause of the Armed Career
Criminal Act (“ACCA”) was unconstitutionally
vague. The Seventh Circuit summarized Johnson's
impact on the ACCA:
The [ACCA] . . . classifies as a violent felony any crime
that “is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another”.
The part of clause (ii) that begins “or otherwise
involves” is known as the residual clause.
Johnson holds that the residual clause is
Stanley v. United States, 827 F.3d 562, 564 (7th
Cir. 2016). Johnson's holding is a new rule of
constitutional law that the Supreme Court made retroactive in
Welch v. United States, 136 S.Ct. 1257 (2016).
See Holt v. United States, 843 F.3d 720, 722 (7th
Johnson, defendants across the country have
challenged their convictions and sentences under statutes
that have the same or similar language as the ACCA's
residual clause, arguing that those statutes must likewise be
unconstitutionally vague. Mr. Wilson raises one variant of
this argument, challenging the residual clause found in 18
U.S.C. § 924(c).
January 7, 2000, petitioner Kenneth T. Wilson was convicted
of using a firearm during and in relation to committing a
“crime of violence”-specifically armed bank
robbery-in violation of § 924(c). The petition argues
that post-Johnson, armed bank robbery, 18 U.S.C.
§ 2113(a), fails to qualify as a “crime of
violence” because the § 924(c) residual clause is
materially indistinguishable from the ACCA residual clause
(18 U.S.C. § 924(e)(2)(B)(ii)) that the Supreme Court in
Johnson struck down as void for vagueness.
924(c)(1)(A) imposes minimum sentences for possessing,
brandishing, or discharging a firearm “in relation to
any crime of violence or drug trafficking crime.” 18
U.S.C § 924(c)(1)(A). Section 924(c)(3) of the statute
defines “crime of violence” to include any felony
that either “(A) has as an element the use, attempted
use, or threatened use of physical force against the person
or property of another, ” often referred to as the
elements clause or force clause, or “(B) by its nature,
involves a substantial risk that physical force against the
person or property of another may be used, ” referred
to as the residual clause.
Seventh Circuit has held the second of these two options, the
“residual clause, ” is unconstitutionally vague
in light of Johnson's holding that a similar
residual clause in the ACCA, 18 U.S.C. §
924(e)(2)(B)(ii), was unlawfully vague. United States v.
Cardena, 842 F.3d 959, 995- 96 (7th Cir. 2016)
(citing Johnson, 135 S.Ct. at 2557). So to be a
crime of violence, armed bank robbery must qualify under the
surviving “elements clause, ” see 18
U.S.C. § 924(c)(3)(A). Mr. Wilson argues that it does
not. But since his petition was filed on June 24, 2016, the
Seventh Circuit has held armed bank robbery qualifies under
the “elements clause” as a crime of violence.
Clark v. United States, 680 Fed.Appx. 470, 473 (7th
Cir. 2017); see also United States v. Armour, 840
F.3d 904, 907-09 (7th Cir. 2016) (holding that even an
attempt to commit an unarmed bank robbery is a crime of
violence under the elements clause). Therefore, even though
Johnson invalidated § 924(c)(3)'s residual
clause, armed bank robbery remains a crime of violence under
§ 924(c)(3)'s elements clause, and it therefore
constitutes a valid predicate crime of violence for the
purposes of Mr. Wilson's convictions. Mr. Wilson is thus
not entitled to relief.
the court now dismisses this action pursuant
to Rule 4 because the holdings in Clark and
Armour foreclose the petitioner's challenge to
consistent with this Entry shall now issue and a copy
of this Entry shall be docketed in No. 1:99-cr-62-SEB-TAB
to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of
the Rules Governing § 2255 proceedings, and 28 U.S.C.
§ 2253(c), the Court finds that the petitioner has
failed to show that reasonable jurists would find “it
debatable whether the petition states a valid claim of the
denial of a constitutional right.” Slack ...