United States District Court, W.D. Wisconsin
OPINION & ORDER
WILLIAM M. CONLEY DISTRICT JUDGE
Donnie Lee Taylor-Young has filed a motion for
post-conviction relief under 28 U.S.C. §
2255. He argues that he is entitled to a
reduction in his sentence under the Supreme Court's
decision in Johnson v. United States, 135 S.Ct. 2551
(2015), in which the Court held that the vagueness of the
“residual clause” in the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B),
violated the due process clause of the Fifth Amendment.
Because the decision in Johnson does not apply to
his situation, however, his petition must be denied.
§ 924(e), a defendant is subject to a significantly
greater sentence if the court finds that, among other things,
the defendant has three prior felonies for either a violent
felony or serious drug offense. A “violent
felony” is defined as a crime that:
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another, or
(ii) is burglary of a dwelling, arson, or extortion, involves
use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to
§ 924(e)(2)(B) (emphasis added). In Johnson,
the Supreme Court found the italicized language at the end of
subsection (ii) above ___ the so-called “residual
clause” ___ is too vague to satisfy due process
guaranteed by the United States Constitution. The Supreme
Court subsequently held that Johnson applies
retroactively. Welch v. United States, 136 S.Ct.
1257 (Apr. 18, 2016).
petitioner believes that Johnson applies, his
sentence did not arise under § 924(e)(2)(B)(ii).
Following an indictment for brandishing a firearm during a
robbery, he pled guilty to use of a firearm during a crime of
violence in violation of 18 U.S.C. § 924(c)(1).
Accordingly, he was sentenced under that statute, which
neither implicates § 924(e)(2)(B) nor involves
consideration of past crimes. But that does not resolve this
question because the Seventh Circuit has held that the
reasoning in Johnson applies to convictions under
§ 924(c) that included an enhancement under §
924(c)(3)(B). United States v. Cardena, 842 F.3d
959, 996 (7th Cir. 2016).
§ 924(c)(1), a mandatory minimum sentence applies to
“any person who, during and in relation to any crime of
violence or drug trafficking crime” uses or carries a
firearm. Unlike the definition of a “violent
felony” considered by the Court in Johnson, a
“crime of violence” is defined as a felony
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of
(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.
§ 924(c)(3). In Cardena, the Seventh Circuit
acknowledged that the definition of “crime of
violence” under subsection (B) is “virtually
indistinguishable” from the residual clause addressed
in Johnson and held that enhancements under
subsection (B) would be unconstitutional. Cardena,
842 F.3d at 996. However, the court likewise held that an
enhancement under subsection (A) may be sustained. While this
left the question of whether a Hobbs Act robbery falls under
§ 924(c)(3)(A) or (B), the Seventh Circuit also answered
this question in the affirmative in United States v.
Anglin, 846 F.3d 954, 964-65 (7th Cir. 2017)
(“Hobbs Act robbery is a ‘crime of violence'
within the meaning of §
923(c)(3)(A).” (emphasis added)),
remanded on other grounds, No. 16-9411,
- U.S.-, 2017 WL 2378833
(U.S. Oct. 2, 2017). Given that Taylor-Young pled guilty to a
Hobbs Act robbery, he waived this challenge. See United
States v. Wheeler, 857 F.3d 743, 744 (7th Cir. 2017)
(“[A] person who pleads guilty to a § 924(c)
charge cannot use Johnson and Cardena to
reopen the subject.”). Regardless, the holdings in
Johnson, Welch, and Cardena have no impact
on his sentence, and his petition must be denied. As such,
the court will also deny his pending motions (dkts. #2, #3)
Rule 11 of the Rules Governing Section 2255 Proceedings, the
court must issue or deny a certificate of appealability when
entering a final order adverse to a petitioner. To obtain a
certificate of appealability, the applicant must make a
“substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2); Tennard v.
Dretke, 542 U.S. 274, 282 (2004). This means that
“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.”
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(internal quotations and citations omitted). Because
Taylor-Young has not made a substantial showing of a denial
of a constitutional right, no certificate will issue.
the rule allows a court to ask the parties to submit
arguments on whether a certificate should issue, it is not
necessary to do so in this case because the question is not a
close one. Taylor-Young is free to seek a certificate of
appealability from the court of appeals under Fed. R. App. P.
22, but that court will not consider his request unless he
first files a notice of ...