United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
Joseph
S. Van Bokkelen United States District Judge
Isaiah
Chase filed a pro se motion under 28 U.S.C. § 2255 to
have his conviction under 18 U.S.C. § 924(c)(1)(A)
vacated (DE 219). The questions before the Court are whether
it must hold an evidentiary hearing on his motion, and, if no
evidentiary hearing is required, whether Chase is entitled to
any relief under § 2255.
A.
Background
Chase,
along with three co-defendants, was charged by indictment
with: conspiracy to possess with intent to distribute cocaine
under 21 U.S.C. § 846 (Count 1); attempt to possess with
intent to distribute cocaine under 21 U.S.C. §§ 841
and 846 (Count 2); conspiracy to interfere with commerce by
threat or violence under 18 U.S.C. § 1951(a) (Hobbs Act
robbery) (Count 3); attempt to interfere with commerce by
threat or violence under 18 U.S.C. § 1951(a) and aiding
and abetting under 18 U.S.C. § 2 (Count 4); Conspiracy
to use a firearm in furtherance of a crime of violence and a
drug trafficking crime under 18 U.S.C. § 924(o) (Count
5); and possessing firearms in furtherance of a crime of
violence and a drug trafficking crime under 18 U.S.C. §
924(c)(1)(A) and aiding and abetting under 18 U.S.C. § 2
(Count 6). Chase entered into a plea agreement in which he
agreed to plead guilty to Count 6 in exchange for the
Government's agreement to dismiss the other counts
against him and to make a binding recommendation for a
sentence of 84 months.
At his
change of plea hearing on September 13, 2011, the Court
advised Chase that, although he was not pleading guilty to
Counts 1, 2, 3, or 4, the Government would have to prove that
he was guilty of at least one of those counts in order to
prove him guilty of Count 6. Chase testified that on June 30,
2010, he was approached by one of his co-defendants, who
asked if he had a drivers license, and invited him to a hotel
room where there might be a party. Chase went to the hotel
room and heard discussions among the three co-defendants,
from which he learned that they intended to commit an armed
drug robbery on July 1. Chase's part in the plot was to
drive a vehicle to a prearranged location because only he
among them had a drivers license. He was told that there
would be firearms in the trunk of the vehicle he was to
drive. He got into the vehicle and drove the co-defendants to
the location, knowing that the co-defendants intended to
commit a robbery of illegal narcotics and that there were
firearms in the trunk.
The
Court found Chase guilty of Count 6. He was sentenced on
November 29, 2011. The Court's judgment was entered on
December 2, 2011. Chase did not appeal.
Chase
asserts that on the basis of the Supreme Court decision in
Johnson v. United States, 135 S.Ct. 2551 (2015), he
is entitled to have his conviction under Count 6 vacated
because pursuant to the logic of that decision, conspiracy to
commit Hobbs Act robbery is not a crime of violence.
B.
Discussion
A
movant under § 2255 is entitled to an evidentiary
hearing “[u]nless the motion and the files and records
of the case conclusively show that the prisoner is entitled
to no relief.” 28 U.S.C. § 2255(b). Because Chase
has not raised any factual claims which would require an
evidentiary hearing for resolution, no hearing is required.
See Perrone v. United States, 889 F.3d 898, 909-10
(7th Cir. 2018).
Under
§2255(f)(3) Chase's motion must have been filed
within one year of the date on which the right he asserts was
first recognized by the Supreme Court and “made
retroactively applicable to cases on collateral
review.” The Johnson case on which he relies
was handed down on June 26, 2015. In Welch v. United
States, 136 S.Ct. 1257, 1265 (2016) the Supreme Court
recognized that Johnson has retroactive effect in
cases on collateral review. Chase filed his motion on June
27, 2016, but, if his motion turns on a right first
recognized in Johnson, his motion is timely because
June 26, 2016, fell on a Sunday.
The
crime to which Chase pleaded guilty, 18 U.S.C. §
924(c)(1)(A)(i), provides: “[A]ny person who, during
and in relation to any crime of violence or drug trafficking
crime . . . possesses a firearm” must be sentenced to a
term of imprisonment of not less than five years. Under
§ 924(c)(2) a drug trafficking crime includes any felony
punishable under the Controlled Substances Act, 21 U.S.C.
§ 801 et. seq. Section 924(c)(3) defines a crime of
violence as any felony offense that “(A) has as an
element the use, attempted use, or threatened use of physical
force against 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.” The first part of this definition is know
as the elements clause, while the second part is referred to
as the residual clause.
The
statute referred to as Hobbs Act robbery, 18 U.S.C. §
1951(a), provides:
Whoever in any way or degree obstructs, delays, or affects
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.
The
Hobbs Act defines robbery as the taking of personal property
from another “by means of actual or threatened force,
or violence, or fear of injury, immediate or future, to ...