United States District Court, E.D. Wisconsin
STADTMUELLER, U.S. DISTRICT JUDGE
Terrill Brown (“Brown”) pleaded guilty to two
counts of bank robbery, in violation of 18 U.S.C. §
2113(a), (d) & 2, one count of Hobbs Act robbery, in
violation of 18 U.S.C. § 1951(a) & 2, 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) & 2. United States v. Terrill
Brown, 15-CR-226-5-JPS (E.D. Wis.) (Brown's
“Criminal Case”), (Docket #176). On September 6,
2017, the Court sentenced him to just under thirteen
years' imprisonment, with seventy months being applied to
the robbery convictions, and eighty-four months for the gun
charge, to run consecutively to the robbery sentences.
Id. Brown did not appeal his convictions or
filed a motion pursuant to 28 U.S.C. § 2255 to vacate
his Section 924(c) conviction on March 16, 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. Generally,
the Court begins the screening process by examining the
timeliness of the motion and whether the claims therein are
procedurally defaulted. The Court need not address those
matters, however, because Brown's sole ground for relief
is plainly meritless.
contends that he received ineffective assistance of counsel
in arriving at his plea agreement, in violation of his rights
under the Sixth Amendment. (Docket #1 at 4); Strickland
v. Washington, 466 U.S. 668, 684-86 (1984). Brown argues
that his counsel should not have advised him to plead guilty
to the Section 924(c) charge because, in Brown's view,
“application of Section 924(c) to the Hobbs Act is
illegal.” (Docket #2 at 5). A claim of ineffective
assistance requires proof of both deficient performance by
counsel and resulting prejudice to the defendant. Perrone
v. United States, 889 F.3d 898, 908 (7th Cir. 2018).
Brown is incorrect on the law concerning the interaction
between the Hobbs Act and Section 924(c), and so cannot
establish that his counsel performed deficiently.
924(c) imposes additional penalties on individuals who carry
or use firearms in connection with certain crimes. 18 U.S.C.
§ 924(c). In Brown's case, he was convicted of
brandishing a firearm during a “crime of violence,
” which the statute defines as
an offense that is a felony and-
(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.
Id. § 924(c)(3). The first clause is referred
to as the “force” or “elements”
clause, while the second is known as the
citing a number of Supreme Court decisions on the vagueness
of criminal statutes and the modes for interpreting them,
believes that Hobbs Act robbery does not qualify as a
“crime of violence” under either clause.
See (Docket #2 at 6-22). However, the Seventh
Circuit has expressly held that Hobbs Act robbery meets the
definition via the force clause. United States v.
Anglin, 846 F.3d 854, 964-65 (7th Cir. 2017); United
States v. Rivera, 847 F.3d 847, 848 (7th Cir. 2017).
Brown is aware of this. (Docket #2 at 19) (“Petitioner
is aware of the fact that the precedent of this circuit is
against petitioner because this circuit has held that Hobbs
Act [robbery] is a ‘crime of violence' pursuant to
924(c)(3)(A).”). In essence, Brown wants this Court to
disagree with Anglin and Rivera. This Court
has no authority to do so. In any event, the Court of Appeals
has also held that Section 2113 bank robbery is also a
“crime of violence, ” so Brown's Section
924(c) conviction would be valid even without the Hobbs Act
robbery charge. United States v. Williams, 864 F.3d
826, 830 (7th Cir. 2017).
Brown 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), Brown 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
Brown's motion presented a viable ground for relief. His
arguments have been directly rejected by the Seventh Circuit,
and he knew as much when he filed the motion. As a
consequence, the Court is compelled to deny a certificate of
appealability as to Brown's motion.
the Court closes with some information about the actions that
Brown 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) ...