United States District Court, S.D. Indiana, Indianapolis Division
ENTRY DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C.
§ 2255 AND DENYING CERTIFICATE OF APPEALABILITY
EVANS BARKER, JUDGE UNITED STATES DISTRICT COURT.
motion of Petitioner Darryl Taylor for relief pursuant to 28
U.S.C. § 2255 challenges his sentence pursuant to the
Supreme Court's decision in Johnson v. United
States, 135 S.Ct. 2551 (2015). For the reasons
explained, his motion for relief must be
denied and the action dismissed with
prejudice. In addition, the Court finds that a certificate of
appealability should not issue.
The § 2255 Motion
February 2009, Mr. Taylor was found guilty by a jury of two
counts of armed robbery, in violation of 18 U.S.C. §
1951(a) (“Hobbs Act robbery”), and two counts of
brandishing a firearm during and in relation to a crime of
violence, in violation of § 924(c). Mr. Taylor was
sentenced to 444 months' imprisonment (24 months on each
of Counts 1 and 3, to be served concurrently; 120 months on
Count 2, to be served consecutively; and 300 months on Count
4, to be served consecutively.) Mr. Taylor appealed and the
Seventh Circuit affirmed Mr. Taylor's conviction and
sentence. United States v. Taylor, 604 F.3d 1011
(7th Cir. 2010).
Taylor filed a post-conviction motion claiming ineffective
assistance of counsel and that motion was subsequently
denied. On June 2, 2016, the Seventh Circuit authorized Mr.
Taylor to file a second or successive motion pursuant to 28
U.S.C. § 2255(h) to argue that attempted Hobbs Act
Robbery no longer qualifies as a predicate crime of violence
for § 924(c). On June 15, 2016, Mr. Taylor filed a
second § 2255 motion.
Supreme Court in Johnson held that the so-called
residual clause of the Armed Career Criminal Act
(“ACCA”) was unconstitutionally vague. The
Seventh Circuit recently 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. Taylor raises one variant of
this argument, challenging the residual clause found in
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.
Taylor argues that his convictions for brandishing a firearm
during a crime of violence under 18 U.S.C. §
924(c)(1)(A)(ii), which are predicated on Hobbs Act robbery
as the crime of violence, are no longer valid in light of
Johnson. Specifically, Mr. Taylor argues that his
Hobbs Act robberies, 18 U.S.C. § 1951, do not qualify as
a crimes of violence under the force clause and that
Johnson invalidated any convictions under the
Seventh Circuit has held that Johnson's holding
extends to and therefore invalidates the residual clause in
§ 924(c)(3). See United States v. Cardena, 842
F.3d 959, 996 (7th Cir. 2016) (“[W]e hold that the
residual clause in 18 U.S.C. § 924(c)(3)(B) is also
unconstitutionally vague.”). However, the Seventh
Circuit has held that Hobbs Act robbery constitutes a crime
of violence under the force clause. See United States v.
Anglin, 846 F.3d 954, 965 (7th Cir. 2017) (“Hobbs
Act robbery is a ‘crime of violence' within the
meaning of § 92(c)(3)(A).”); see also
United States v. Rivera, 847 F.3d 847, 849 (7th Cir.
2017) (holding that the Supreme Court's decision in
Mathis v. United States, 136 S.Ct. 2243 (2016), does
not undermine the holding of Anglin that Hobbs Act
robbery constitutes a crime of violence under the force
clause of § 924(c)(3)). Therefore, even though
Johnson invalidated § 924(c)(3)'s ...