United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
THERESA L. SPRINGMANN CHIEF JUDGE
Defendant, Freddie L. Church, Jr., is serving a sentence for
attempting to interfere with commerce by robbery in violation
of 18 U.S.C. § 1951(a) and (b) (Count 3), and carrying a
firearm during and in relation to a crime of violence in
violation of 18 U.S.C. § 924(c) (Count 5). For purposes
of the Count 5 § 924(c) conviction, the crime of
violence was the attempted Hobbs Act robbery that was set
forth in Count 3. The Defendant now seeks to vacate his
conviction and sentence under § 924(c) [Motion for
Relief Under 28 U.S.C. § 2255(f)(3), ECF No. 322]. The
Defendant predicates his Motion on the Supreme Court's
decision in Sessions v. Dimaya, 138 S.Ct. 1204
(2018). He argues that attempted Hobbs Act robbery is not a
crime of violence under the categorical approach.
Government has filed a Response [ECF No. 330], arguing that
Dimaya has no bearing on whether Hobbs Act robbery
remains a crime of violence under § 924(c)'s
elements clause, and thus does not extend the one-year filing
Defendant's judgment of conviction was entered on May 10,
2017. He filed his Motion to Vacate on August 21, 2018. A
motion filed under 28 U.S.C. § 2255 is subject to a
one-year limitations period that runs from:
(1) the date on which the judgment of conviction becomes
(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
(3) 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; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2255(f). Accordingly, a defendant seeking
collateral review under § 2255 will have one year from
the date on which his judgment of conviction is final to file
his petition, id. § 2255(f)(1); see also
Dodd v. United States, 545 U.S. 353, 357 (2005), or one
year from three limited, alternative circumstances, 28 U.S.C.
§ 2255(f)(2)-(4). Here, subsection (f)(3) is the only
subsection that could render the Defendant's Motion
problem for the Defendant is that his Motion is not based on
a right that has been newly recognized by the Supreme Court
and made retroactively applicable to cases on collateral
review. Dimaya cannot be the source of that right.
Dimaya did not involve § 924(c). It involved
the materially identical 18 U.S.C. § 16(b), which is
incorporated into the Immigration and Nationality Act's
definition of the types of past criminal convictions that
render an alien deportable after entering the United States.
Dimaya, 138 S.Ct. at 1211. In finding § 16(b)
unconstitutionally vague, the Court stated that “just
like ACCA's residual clause, § 16(b) ‘produces
more unpredictability and arbitrariness than the Due Process
Clause tolerates.'” Dimaya, 138 S.Ct. at
1223 (quoting Johnson, 135 S.Ct. at 2558).
Dimaya did “not have anything to do with the
elements clause” of § 924(c) or any other statute,
“and § 2255(f)(3) therefore does not afford [him]
a new one-year period to seek collateral relief on a theory
that the elements clause does not apply to a particular
conviction.” Stanley v. United States, 827
F.3d 562, 565 (7th Cir. 2016) (holding that a conviction that
the sentencing court counted as violent under the elements
clause of the Sentencing Guidelines was outside the scope of
Johnson v. United States, 135 S.Ct. 2251 (2015)).
the Defendant was found guilty of carrying a firearm in
relation to a crime of violence because attempted Hobbs Act
robbery “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).
“Hobbs Act robbery is a ‘crime of violence'
within the meaning of § 924(c)(3)(A).” United
States v. Anglin, 846 F.3d 954, 965 (7th Cir.
2017); see also United States v.
Rivera, 847 F.3d 847, 848-49 (7th Cir. 2017) (stating
that “[b]ecause one cannot commit Hobbs Act robbery
without using or threatening physical force, . . . Hobbs Act
robbery qualifies as a predicate for a crime-of-violence
conviction”). The Defendant could not have been found
guilty of the attempted Hobbs Act robbery as charged in Count
3 of the Indictment unless he “specific[ally]
intent[ed] to commit the full robbery” and took
“a substantial step toward that end.” United
States v. Muratovic, 719 F.3d 809, 815 (7th Cir. 2013).
Accordingly, his offense of conviction had, at the very
least, the attempted or threatened use of physical force
against the person or property of another, which is
sufficient to put it squarely within the elements clause
definition. The Defendant's reliance on cases involving
only a conspiracy, as opposed to an attempt, to commit
robbery are inapplicable to his Count 3 conviction.
the Court considered the Defendant's conviction for
attempted Hobbs Act robbery to be violent under the elements
clause, § 924(c)(3)(A), and nothing in Dimaya
creates a newly recognized right related to the elements
clause, the Defendant's § 2255 motion is untimely.