REPORT AND RECOMMENDATIONS

MICHAEL R. MERZ, Magistrate Judge.

This case is before the Court for initial review of Defendant Justice's Motion to Vacate Sentence under 28 U.S.C. § 2255 (ECF No. 144). Rule 4(b) of the Rules Governing § 2255 Proceedings provides:

All collateral attacks on criminal convictions filed at the Dayton location of court are referred to the undersigned by General Order Day 13-01.

Justice claims the benefit of Johnson v. United States, 576 U.S. ___, 135 S.Ct. 2551, 192 L. Ed. 2d 569 (2015), the Supreme Court found the residual clause of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(1), to be unconstitutionally vague. Johnson announced a new substantive rule that has retroactive effect in cases on collateral review. Welch v. United States, 576 U.S. ___, 136 S.Ct. 1257 (2016); In re: Windy Watkins, 810 F.3d 375 (6th Cir. 2015). Justice asserts the residual clause of the career offender Sentencing Guideline is unconstitutional on the same basis as Johnson and indeed the Sixth Circuit has so held United States v. Pawlak, ___ F.3d ___, 2016 U.S. App. LEXIS 8798 (6th Cir. May 13, 2016).

Procedural History

Justice was charged in the Second Superseding Indictment in this case with conspiracy to possess with the intent to distribute cocaine (Count One); attempt to possess with intent to distribute cocaine (Count Two); conspiracy to interfere with commerce through robbery in violation of the Hobbs Act, 18 U.S.C. § 1951 (Count Three); possession with intent to distribute cocaine base (Count Four); using and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c) (Count Five); using and carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c) (Count Six); possessing a firearm after being convicted of a felony (Count Seven); obstruction of justice (Counts Eight, Nine, and Ten)(ECF No. 42, PageID 157-63).

On April 27, 2011, Justice entered into a written Plea Agreement with the United States under which he agreed to plead guilty to the charges made in Counts Three and Six (ECF No. 99, PageID 519). He acknowledged that because the 924(c)(1)(A)(ii) charge included the element of brandishing a firearm, he would be subject to a mandatory minimum seven-year sentence for that offense to be served consecutively to the Hobbs Act sentence. Id. at PageID 520. Having conducted a plea colloquy pursuant to Fed. R. Crim. P. 11, Judge Rice referred the case to the United States Probation Department for preparation of a presentence investigation report ("PSR"). On November 29, 2011, Judge Rice imposed a sentence of 41 months on the Hobbs Act violation and a consecutive eighty-four months on Count 6 (Minutes, ECF No. 136, PageID 630; Judgment, ECF No. 139). Justice took no appeal. The instant Motion was filed June 23, 2016.

ANALYSIS

Justice argues that his sentence under 18 U.S.C. § 924(c)(1) "is predicated upon his Hobbs Act Robbery conviction. However, Hobbs Act Robbery does not require violent conduct; therefore these offenses do not qualify as proper predicate offenses under 18 U.S.C. § 924(c)." (Motion, ECF No. 144, PageID 654.) Justice reasons that to determine whether an offense qualifies as a "crime of violence" courts are required to use the categorical approach prescribed in Descamps v. United States, 133 S.Ct. 2276 (2013). "As a result, post-Descamps, for Hobbs Act Robbery to qualify as a `crime of violence' under § 924(c)(3)'s force clause the offense must have an element of `physical force.'" (Motion, ECF No. 144, PageID 655.) Hobbs Act Robbery does not meet this requirement because it can be accomplished through acts that do not require the use of force. Id.

As noted above, the Supreme Court has held that Johnson creates a new substantive rule which is applicable to cases on collateral review. Welch, supra. Johnson declared the residual clause of the ACCA to be unconstitutionally vague. This is not, however, an ACCA case. Justice responds "the Court said nothing whatsoever to limit its holding or reasoning to ACCA cases. . . . Accordingly, the substantive rule announced in Johnson is categorically retroactive to all cases in which it applies, [footnote omitted] and, as demonstrated above, Johnson applies to the Guidelines." (ECF No. 144, PageID 658.) But this is not a Guidelines case. Justice was not found to be a career offender by application of the Sentencing Guidelines language which substantially tracks the language found unconstitutionally vague in Johnson. The PSR does not contain any career offender adjustment at all.

Justice's argument appears to be that, applying the categorical approach of Descamps, his Hobbs Act conviction is not for a crime of violence. Descamps was decided June 20, 2013. It has never been held to be applicable retroactively. Zemba v. Farley, 2015 U.S. App. LEXIS 12430 (6th Cir. 2015). Even if Descamps were retroactively applicable to cases pending on collateral review, Justice's instant 2255 Motion would still be untimely, since his conviction became final in 2011 and the Motion was not filed until more than four years later. Johnson does not reopen the one-year statute of limitations for Descamps claims.

Conclusion

Based on the foregoing analysis, it is respectfully recommended that Justice's § 2255 Motion be DISMISSED WITH PREJUDICE. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis.