United States District Court, E.D. Wisconsin
STADTMUELLER U.S. DISTRICT JUDGE.
Jamere Towns (“Towns”) pleaded guilty to nine
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. Jamere Towns,
13-CR-17-4-JPS (E.D. Wis.) (Towns' “Criminal
Case”), (Docket #125). On December 3, 2013, the Court
sentenced him to forty years' imprisonment. Id.,
(Docket #182). Towns did not appeal his convictions or
sentence. He filed a motion to vacate his sentence pursuant
to 28 U.S.C. § 2255 on November 24, 2014, which was
finally denied on December 23, 2015. Jamere Towns v.
United States, 14-CV-1481-JPS, (Docket #33). Later,
Towns sought leave from the Seventh Circuit to file a second
motion to vacate, which was denied. Criminal Case, (Docket
the Court is Towns' second motion to vacate his
convictions. (Docket #1). That motion is now before the Court
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
Rule 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, Towns' motion appears to
be both untimely and procedurally defaulted. The Court need
not address those matters, however, because both of
Towns' grounds for relief are plainly
meritless.Both grounds attack his Section 924(c)
conviction. As noted above, Towns was convicted under
Section 924(c)(1)(A)(ii) for brandishing a firearm during a
crime of violence. In Ground One, Towns questions whether
Hobbs Act robbery still qualifies as a crime of violence.
(Docket #1 at 4). Ground Two is not really a separate ground
at all; it simply states the conclusion that if Ground One is
correct, then Towns' Section 924(c) conviction lacks the
required predicate and must be vacated. Id. at 5.
basis for both grounds, Towns cites to a recent U.S. Supreme
Court decision, Sessions v. Dimaya, 138 S.Ct. 1204
(2018). 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). The implication of Towns' motion is
that under Dimaya's logic, Section 924(c)(3)(B)
must also be struck down. The problem for Towns is that in
his case, any concern with Section 924(c)(3)(B) 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, Hobbs Act robbery does indeed qualify as a
crime of violence. Further, “[Towns'] 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). Thus, the vagueness of Section
924(c)(3)(B) has no bearing on the validity of Towns'
firearm brandishing conviction.
Towns is plainly not entitled to relief on both grounds
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), Towns 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
Towns' 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 Towns' motion.
the Court closes with some information about the actions that
Towns 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
IT IS FURTHER ORDERED that a certificate of