United States District Court, S.D. Indiana, Terre Haute Division
ARTHUR J. CURRY, Petitioner,
UNITED STATES OF AMERICA, Respondent.
ORDER DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C.
§ 2255 AND DENYING A CERTIFICATE OF
R. SWEENEY II, JUDGE
Arthur J. Curry was convicted of two counts of armed bank
robbery, 18 U.S.C. § 2113(a) and (d), and one count of
using of a firearm in relation to a crime of violence, 18
U.S.C. § 924(c), in case number 2:06-cr-11-JRS-CMM-2. He
was sentenced to total term of imprisonment of 264 months-180
months on both bank robbery convictions to run concurrently
and 84 months on the use of firearm conviction to run
consecutive. Judgment was entered on June 8, 2007. Mr. Curry
now seeks to vacate his sentence and conviction under 18
U.S.C. § 924(c) based on the Supreme Court’s
decision in United States v. Davis, 588 U.S. __, 139
S.Ct. 2319, 2336 (2019). For the reasons explained below, Mr.
Curry is not entitled to relief.
4(b) of Rules Governing Section 2255 Proceedings for the
United States District Courts provides:
If it plainly appears from the motion, 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.
Id. That is the case here. Davis does not
provide Mr. Curry any relief based on his 18 U.S.C. §
924(c) conviction and this action must be dismissed.
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.
Davis the Supreme Court held that 18 U.S.C. §
924(c)(3)’s residual clause-that is, §
924(c)(3)(B)-was unconstitutionally vague. 139 S.Ct. at 2336.
See also 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, armed bank robbery that is committed
by “assault[ing] any person, or put[ting] in jeopardy
the life of any person by the use of a dangerous weapon or
device, ” under 18 U.S.C. § 2113(d), constitutes a
crime of violence under the force clause. See U.S. v.
Armour, 840 F.3d 904, 908 (7th Cir. 2016) (holding that
§ 2113(a) and (d) qualify as crimes of violence under
the force clause).
even though Davis invalidated §
924(c)(3)(B)’s residual clause, armed bank robbery is
still a crime of violence under § 924(c)(3)(A)’s
force clause and constitutes a valid predicate crime of
violence for the purposes of Mr. Curry’s convictions.
Mr. Curry is thus not entitled to relief.
motion pursuant to § 2255 is DENIED. Judgment consistent
with this Entry shall now issue. The clerk shall also enter
this Entry on the docket in the underlying criminal action,
No. 2:06-cr-11-JRS-CMM-2. The motion to vacate shall also be
terminated in the underlying criminal action.
Denial of Certificate of Appealability
habeas petitioner does not have the absolute right to appeal
a district court’s denial of his habeas petition,
rather, he must first request a certificate of appealability.
See Miller-El v. Cockrell, 537 U.S. 322, 335 (2003);
Peterson v. Douma, 751 F.3d 524, 528 (7th Cir.
2014). Pursuant 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 Mr. Curry
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” and
“debatable whether [this Court] was correct in its
procedural ruling.” Slack v. McDaniel, 529
U.S. 473, 484 (2000). The Court therefore denies a
certificate of appealability.