United States District Court, S.D. Indiana, Indianapolis Division
ORDER DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C.
§ 2255 AND DENYING A CERTIFICATE OF
EVANS BARKER, JUDGE
Desmond Martin was convicted of one count of interference
with commerce by robbery, 18 U.S.C. § 1951(a)
(“Hobbs Act Robbery”), and one count of using of
a firearm in relation to a crime of violence, 18 U.S.C.
§ 924(c)(1)(B)(i), in case number 1:16-cr-181-SEB-DML-1.
He was sentenced to total term of imprisonment of 121
months-1 month on the robbery conviction and 120 months on
the firearm conviction to run consecutively. Judgment was
entered on May 18, 2018. Mr. Martin 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. Martin is not entitled to
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. Martin 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, Hobbs Act robbery, 18 U.S.C. §
1951(a) is a crime of violence under the still-valid
“elements clause” of § 924(c)(3)(A). See
Haynes v. United States, 936 F.3d 683, 690 (7th Cir.
2019); United States v. Fox, No. 18-3087, 2019 WL
5783473, at *2 (7th Cir. Nov. 6, 2019). This is because it
includes the use, or threatened use of physical force against
the person or property of another. § 1951(b) (defining
even though Davis invalidated §
924(c)(3)(B)'s residual clause, robbery under 18 U.S.C.
§ 1951(a), 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.
Martin's convictions. Mr. Martin is thus not entitled to
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. 1:16-cr-181-SEB-DML-1. The
motion to vacate shall also be terminated in the underlying
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. Martin
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.