United States District Court, E.D. Wisconsin
JERRY L. BOYCE, Petitioner,
UNITED STATES OF AMERICA, Respondent.
Stadtmueller U.S. District Judge
Jerry L. Boyce (“Boyce”) pleaded guilty three
counts of Hobbs Act robbery, in violation of 18 U.S.C. §
1951(a) and 2, 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) and 2, and one count of being
a felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). United States v.
Jerry L. Boyce, 18-CR-29-JPS (E.D. Wis.) (Boyce's
“Criminal Case”), (Docket #15). Plaintiff was
sentenced to 45 months' imprisonment on the robbery and
gun possession charges, and 120 months' imprisonment on
the brandishing charge, for a total of almost fourteen years.
Id., (Docket #28 at 3). Boyce did not appeal his
convictions or sentence. Id., (Docket #31).
September 30, 2019, Boyce filed a motion pursuant to 28
U.S.C. § 2255 to vacate his Section 924(c) conviction.
(Docket #1). That motion is now before the Court for
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. The Court need not address those
matters in this case, however, because Boyce's sole
ground for relief is plainly meritless. Boyce suggests that
the Supreme Court's recent decision in Davis v.
United States, 139 S.Ct. 2319 (2019), warrants vacating
his Section 924(c) conviction. See generally (Docket
understand the import of Davis, one must first know
a bit about Section 924(c). That statute imposes sentences,
carrying substantial mandatory minimums for imprisonment,
when a person uses a firearm during the commission of a
“crime of violence.” 18 U.S.C. §
924(c)(1)(A). A “crime of violence” must always
be a felony, and it must also fall within one of two
definitions. The first definition, known as the
“elements” or “force” clause, says
that the subject crime must “[have] as an element the
use, attempted use, or threatened use of physical force
against the person or property of another[.]”
Id. § 924(c)(3)(A). The second, known as the
“residual” clause, sweeps in any crime
“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)(B). Davis invalidated
the residual clause as being unconstitutionally vague.
Davis, 139 S.Ct. at 2336.
ruling means little for those in the Seventh Circuit, as our
own Court of Appeals struck down the residual clause some
time ago. United States v. Cardena, 842 F.3d 959,
996 (7th Cir. 2016). Indeed, Davis also means little
for Boyce himself. Hobbs Act robbery has been found to fall
within the elements clause. United States v. Anglin,
846 F.3d 954, 964 (7th Cir. 2017) (Hobbs Act robbery). Thus,
those convictions serve as a valid predicate for the Section
924(c) conviction via the elements clause, and so the
validity of the residual clause is immaterial.
only argument is that Hobbs Act robbery should not be
considered a crime of violence under the elements clause.
With the residual clause swept aside by Davis, there
would no longer be a valid predicate for his Section 924(c)
conviction. Anglin has held precisely to the
contrary, however, and this Court is not empowered to
overrule or disagree with the Seventh Circuit. Boyce attempts
to overcome this bar by claiming that his arguments are based
on Supreme Court precedent, which is a higher authority that
the Seventh Circuit. This is of no moment for present
purposes. Only the Court of Appeals or the Supreme Court
could overturn Anglin. Because Boyce is plainly not
entitled to relief on the ground presented in his motion, the
Court is compelled to deny the motion and dismiss this action
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), Boyce 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
Boyce's motion presented a viable ground for relief.
Davis has no bearing on his convictions or sentence,
and this Court lacks authority to overturn Anglin.
As a consequence, the Court is compelled to deny a
certificate of appealability as to Boyce's motion.
the Court closes with some information about the actions that
Boyce 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 ...