United States District Court, E.D. Wisconsin
Stadtmueller, U.S. District Judge
Joshua Gonzalez (“Gonzalez”) pleaded guilty to
three counts of Hobbs Act robbery, in violation of 18 U.S.C.
§ 1951(a), and one count of brandishing a firearm in
connection with a crime of violence, in violation of 18
U.S.C. § 924(c)(1)(A)(ii). United States v. Joshua
Gonzalez, 15-CR-51-2-JPS (E.D. Wis.) (Gonzalez's
“Criminal Case”), (Docket #160). On January 15,
2016, the Court sentenced him to just over eleven years'
imprisonment. Id. Gonzalez did not appeal his
convictions or sentence.
filed a motion pursuant to 28 U.S.C. § 2255 to vacate
his Section 924(c) on May 7, 2018. (Docket #1). That motion
is now before the Court for screening:
If it plainly appears from the motion, any attached exhibits,
and the record of the 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. If the
motion is not dismissed, the judge must order the United
States Attorney to file an answer, motion, or other response
within a fixed time, or to take other action the judge may
4(b), Rules Governing Section 2255 Proceedings.
the Court begins the screening process by examining the
timeliness of the motion and whether the claims therein are
procedurally defaulted. Indeed, Gonzalez's motion appears
to be both untimely and procedurally defaulted. The Court
need not address those matters, however, because
Gonzalez's sole ground for relief is plainly meritless.
Gonzalez says that under the Supreme Court's recent
decision in Sessions v. Dimaya, 138 S.Ct. 1204
(2018), his Section 924(c) conviction violate his due process
rights. Dimaya addressed the criminal code's
definition of a “crime of violence, ” located in
18 U.S.C. § 16. Section 16 has two parts. Section 16(a),
known as the “elements” clause, states that a
crime is a “crime of violence” if it has as an
element the use of physical force. 18 U.S.C. § 16(a).
Section 16(b), known as the “residual” clause,
says that a crime which does not fall within Section 16(a)
may nevertheless be considered a “crime of
violence” if it is a felony and “by its nature,
involves a substantial risk that physical force” may be
used to commit the crime. Id. § 16(b).
Dimaya held that Section 16(b) is unconstitutionally
vague. Dimaya, 138 S.Ct. at 1223.
924(c)(3) defines “crime of violence” for the
purposes of that statute, and uses similar
“elements” and “residual” clauses. 18
U.S.C. § 924(c)(3)(A) (elements clause) & (B)
(residual clause). Gonzalez asserts that under
Dimaya's logic, Section 924(c)(3)(B) must also
be struck down. The problem for Gonzalez is that in his case,
any concern with Section 924(c)(3)(B) clause is academic. The
Court of Appeals held just last year:
[W]e have recently decided that Hobbs Act robbery indeed
qualifies as a “crime of violence” under §
924(c) because it “has as an element the use, attempted
use, or threatened use of physical force against the person
or property of another.” United States v.
Anglin, [846 F.3d 954');">846 F.3d 954');">846 F.3d 954');">846 F.3d 954, 964 (7th Cir. 2017)] (quoting 18
U.S.C. § 924(c)(3)(A)). The Hobbs Act defines robbery in
relevant part as “the unlawful taking or obtaining of
personal property from the person or in the presence of
another, against his will, by means of actual or threatened
force, or violence, or fear of injury, immediate or future,
to his person or property.” 18 U.S.C. §
1951(b)(1). Because one cannot commit Hobbs Act robbery
without using or threatening physical force, we held that
Hobbs Act robbery qualifies as a predicate for a
crime-of-violence conviction. Anglin, [846 F.3d at
United States v. Rivera, 847 F.3d 847, 848-49 (7th
Cir. 2017). Thus, “[Gonzalez's] Hobbs Act robbery
conviction serves as a valid predicate for his Section 924(c)
conviction by way of the elements clause of Section
924(c)(3), not the residual clause.” Jones v.
United States, 17-CV-933-JPS, 2017 WL 3016819, at *2
(E.D. Wis. July 14, 2017). Gonzalez also makes a passing
argument that Hobbs Act robbery does not fall within the
elements clause, but this Court is not at liberty to disagree
with Rivera and Anglin.
Gonzalez is plainly not entitled to relief on the sole ground
presented in his motion, the Court is compelled to deny the
motion and dismiss this action with prejudice. Under Rule
11(a) of the Rules Governing Section 2255 Cases, “the
district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” To obtain a certificate of appealability
under 28 U.S.C. § 2253(c)(2), Gonzalez must make a
“substantial showing of the denial of a constitutional
right” by establishing 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 citations
omitted). No reasonable jurists could debate whether
Gonzalez's motion presented a viable ground for relief.
Dimaya is irrelevant, and Rivera and
Anglin completely foreclose his claim. As a
consequence, the Court is compelled to deny a certificate of
appealability as to Gonzalez's motion.
the Court closes with some information about the actions that
Gonzalez may take if he wishes to challenge the Court's
resolution of this case. This order and the judgment to
follow are final. A dissatisfied party may appeal this
Court's decision to the Court of Appeals for the Seventh
Circuit by filing in this Court a notice of appeal within 30
days of the entry of judgment. See Fed. R. App. P.
3, 4. This Court may extend this deadline if a party timely
requests an extension and shows good cause or excusable
neglect for not being able to meet the 30-day deadline.
See Fed. R. App. P. 4(a)(5)(A). Moreover, under
certain circumstances, a party may ask this Court to alter or
amend its judgment under Federal Rule of Civil Procedure
59(e) or ask for relief from judgment under Federal Rule of
Civil Procedure 60(b). Any motion under Federal Rule of Civil
Procedure 59(e) must be filed within 28 days of the entry of
judgment. The Court cannot extend this deadline. See
Fed. R. Civ. P. 6(b)(2). Any motion under Federal Rule of
Civil Procedure 60(b) must be filed within a reasonable time,
generally no more than one year after the entry of the
judgment. The court cannot extend this deadline. See
id. A party is expected to closely review all applicable
rules and determine what, if any, further action is
appropriate in a case.
IT IS ORDERED that Petitioner's motion
to vacate, set aside, or correct his sentence pursuant to
Section 2255 (Docket #1) be and the same is hereby
IS FURTHER ORDERED that this action be and the same
is hereby DISMISSED with prejudice; and
IS FURTHER ORDERED that a certificate of
appealability be and ...