A petitioner requesting post-conviction relief in his untimely motion filed under 28 U.S.C. § 2255 has not shown that his Hobbs Act conviction and convictions of murder and assault in aid of racketeering were not “crimes of violence” under Johnson v. U.S., which invalidated the residual-clause definition of a crime of violence under the ACCA; the Newport News U.S. District Court says the petition will be dismissed without an alternative ground for the untimely motion.
Petitioner asserts the instant motion is timely pursuant to 28 U.S.C. § 2255(f) (3), based on Welch v. U.S. 136 S.Ct. 1257 (2016), which made the new right recognized in Johnson v. U.S., 135 S.Ct. 2551 (2015), applicable on collateral review. In Johnson, the Supreme Court struck down the residual clause of the Armed Career Criminal Act, in 18 U.S.C. § 924(e)(2)(B)(ii), because it was unconstitutionally vague.
Here, petitioner was not sentenced under the ACCA. Instead, he challenges his convictions under 18 U.S.C. § 924(c)(1) – counts 5, 7, 10, 13 and 19. Petitioner’s underlying crime of violence for count 5 was murder in aid of racketeering, 18 U.S.C. § 1959(a)(1). The underlying crime of violence for each of counts 7, 10 and 13 was Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) – counts 6, 9 and 12. The underlying crime of violence for count 19 was assault with a dangerous weapon in violation of 18 U.S.C. § 1959(a)(3) – count 18.
Crime of violence
“Crime of violence” for purposes of § 924(c)(1) is an offense that is a felony and has an element of use, attempted use or threatened use of physical force. This subsection (A) is the “force clause.” Subsection (B), the “residual clause,” says an offense is a crime of violence if it is a felony and “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.”
Petitioner argues that his predicate crimes qualify as “crimes of violence” only under the residual clause and, as Johnson invalidates the residual clause, his conviction under § 924(c)(1) must be vacated. Petitioner fails at both steps of his argument.
The three predicate crimes of violence underlying his five § 924(c) convictions are all crimes of violence under the force clause in in § 924(c)(3)(A). Because murder in aid of racketeering activity, assault with a dangerous weapon resulting in serious bodily injury in aid of racketeering activity, and Hobbs Act robbery are crimes of violence under the force clause of § 924(c)(3)(A), the residual clause of § 924(c)(3)(B) is not implicated.
Petitioner is warned that his § 2255 motion will be dismissed as untimely unless he can otherwise demonstrate that it was filed within the proper time period under 28 U.S.C. § 2255.
Cousins v. U.S. (Smith) (Published) No. 4:16cv60, Aug. 2, 2016; USDC at Newport News, Va.; Eric M. Hurt for respondent. VLW 016-3-377, 13 pp.