United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
THERESA L. SPRINGMANN CHIEF JUDGE
Defendant, Shaiki Sutton, 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 to Vacate
Judgment Under 28 U.S.C. § 2255, ECF No. 313]. 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 because the residual clause definition of a
crime of violence, § 924(c)(3)(B), is unconstitutionally
vague. He maintains that even if Hobbs Act robbery is a crime
of violence under the elements clause, § 924(c)(3)(A),
his conviction was only for attempted robbery, which does not
Government has filed a Response [ECF No. 320], asserting that
a defendant may not generally raise an issue for the first
time on collateral attack that he could have presented at
trial or on direct appeal. The Government asserts that the
Defendant cannot establish cause or prejudice for this
procedural bar, as all relevant cases were decided, or at
least pending, prior to his January 31, 2018, sentencing
date. Moreover, these cases establish that Hobbs Act robbery,
including attempted robbery, is a crime of violence under the
elements clause. With respect to Dimaya, the cases
show that it has no application to the Defendant's case.
Defendant's judgment of conviction was entered on January
31, 2018. He filed his Motion to Vacate on June 11, 2018.
2255 allows a person convicted of a federal crime to seek to
vacate, set aside, or correct his sentence. This relief is
available only in limited circumstances, such as where an
error is of jurisdictional or constitutional magnitude, or
where there has been an error of law that “constitutes
a fundamental defect which results in a complete miscarriage
of justice.” See Harris v. United States, 366
F.3d 593, 594 (7th Cir. 2004). Motions to vacate a conviction
or correct a sentence ask a court to grant an extraordinary
remedy to a person who has already had an opportunity of full
process. Kafo v. United States, 467 F.3d 1063, 1068
(7th Cir. 2006). A Section 2255 motion is not a substitute
for a direct criminal appeal nor is it a means by which a
defendant may appeal the same claims a second time. See
Bousley v. United States, 523 U.S. 614, 621 (1998)
(relief under 2255 “will not be allowed to do service
for an appeal”); Varela v. United States, 481
F.3d 932, 935 (7th Cir. 2007) (Section 2255 motion is
“neither a recapitulation of nor a substitute for a
direct appeal.”) (citation omitted).
defendant can raise a procedurally barred constitutional
issue if he can show that there was cause for failing to
raise an issue on appeal and that prejudice resulted
therefrom. Cross v. United States, 892 F.3d 288,
294-95 (7th Cir. 2018). Meeting the cause and prejudice
standard is more difficult than establishing “plain
error.” See United States v. Frady, 456 U.S.
152, 162-66 (1982). He can also raise a barred constitutional
issue if he can show that the Court's failure to hear the
issue would result in a fundamental miscarriage of
justice-which requires an actual showing of innocence.
McCleese v. United States, 75 F.3d 1174, 1177 (7th
Cir. 1996); see also U.S. ex rel. Bell v. Pierson,
267 F.3d 544, 551-52 (7th Cir. 2001) (explaining that
petitioner must show that “it is more likely than not
that no reasonable juror would have convicted him in light of
new evidence”) (citing Schlup v. Delo, 513
U.S. 298, 327 (1995) (ellipses omitted)).
Defendant argues that he is actually innocent of the 18
U.S.C. § 924(c) conviction for using a firearm during a
crime of violence because Hobbs Act robbery is not a
“crime of violence” under that statute. Section
924(c)(1) provide that “any person who, during and in
relation to any crime of violence or drug trafficking crime .
. . uses or carries a firearm, or who, in furtherance of any
such crime, possesses a firearm, shall” receive a term
of imprisonment of not less than five years “in
addition to the punishment provided for such crime of
violence or drug trafficking crime.” 18 U.S.C. §
924(c)(1). The statute creates “an offense distinct
from the underlying federal felony.” Simpson v.
United States, 435 U.S. 6, 10 (1978). “Crime of
violence” is defined in two ways, the latter of which
is commonly referred to as the residual clause and refers to
a crime “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)(B).
Defendant argues that Dimaya's holding regarding
the constitutionality of a similarly-worded statute should be
applied to § 924(c)'s residual clause. He further
maintains that the still intact elements clause, which refers
to an offense that “has as an element the use,
attempted use, or threatened use of physical force against
the person or property of another, ” id.
§ 924(c)(3)(A), does not apply to his conviction for
attempted Hobbs Act robbery.
Defendant's arguments regarding Dimaya, and its
implication on § 924(c)(3)(B), is academic.
Dimaya did “not have anything to do with the
elements clause” of § 924(c) or any other statute.
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's attempted Hobbs Act robbery conviction serves
as a valid predicate for his § 924(c) conviction by way
of the elements clause, not the residual clause. On March 15,
2016, this Court denied the Defendant's motion to dismiss
Count 5 of the Indictment, which is the same § 924(c)
charge that he is now collaterally attacking. The Court, in
its Opinion and Order [ECF No. 80], unambiguously stated its
position that a conviction under Count 3 for attempted Hobbs
Act robbery would satisfy as a predicate offense under §
924(c)(3)(A), the elements clause. The Court disclaimed any
reliance on the residual clause. The Defendant did not take
any direct appeal to challenge that holding.
Seventh Circuit has held that “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”). That the Defendant's offense was an
attempt under Hobbs Act, and not a completed robbery does not
alter the conclusion. 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).
In any event, the Defendant has not established cause or
prejudice for failing to pursue the claim through a direct
appeal, or that he is actually innocent of carrying a firearm
in connection with a crime of violence.
Rule 11(a) of the Rules Governing § 2255 proceedings,
the Court issues or denies a certificate of appealability
under 28 U.S.C. § 2253(c)(2) when it enters a final
order adverse to the applicant. A certificate of
appealability may be issued “only if the applicant has
made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2); Rule 11 of Rules
Governing Section 2255 Proceedings. The substantial showing
standard is met when “reasonable jurists could debate
whether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed
further.” Slack v. McDaniel, 529 U.S. 473, 484
(2000) (quotation marks omitted); Barefoot v.
Estelle, 463 U.S. 880, 893 & n.4 (1983).
“Where a plain procedural bar is present and the
district court is correct to invoke it to dispose of the
case, a reasonable jurist could not conclude either that the
district court erred in dismissing the petition or that the
petitioner should be allowed to proceed further.”
Slack, 529 U.S. at 484.
reasonable jurists could debate whether the Defendant's
Motion presents a viable ground for relief. The Defendant has
not shown cause and prejudice for failing to bring his claim
on direct appeal. The Defendant cannot establish actual
innocence; Dimaya is irrelevant, in part, because
attempted Hobbs Act robbery is a crime of violence under the
elements clause of § 924(c)(3). ...