OPINION AND ORDER
GEORGE C. SMITH, District Judge.
On August 8, 2016, the Magistrate Judge issued a Report and Recommendation pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings recommending that this action be dismissed and that Petitioner's motion to hold proceedings in abeyance (ECF No. 53) be denied. (ECF No. 54). Petitioner has filed an Objection to the Magistrate Judge's Report and Recommendation. (ECF No. 55). Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the reasons that follow, Petitioner's Objection (ECF No. 55) is OVERRULED. The Report and Recommendation (ECF No. 54) is ADOPTED and AFFIRMED. This motion to vacate pursuant to 28 U.S.C. § 2255 (ECF No. 52) is DISMISSED. Petitioner's motion to hold proceedings in abeyance (ECF No. 53) is DENIED.
Petitioner recognizes that the United States Court of Appeals for the Sixth Circuit in United States v. Taylor, 814 F.3d 340, 375 (6th Cir. 2016), rejected his argument that the residual clause of 18 U.S.C. § 924(c) is constitutionally invalid based on the reasoning of the United States Supreme Court in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015) (declaring the "residual clause" of 18 U.S.C. § 924(e)(2)(B)(ii) of the Armed Career Criminal Act ("ACCA") to be unconstitutionally vague). Petitioner nonetheless argues that Taylor was wrongly decided because it employed a modified categorical approach, instead of a categorical approach, which analysis has since been rejected by the Supreme Court in Mathis v. United States, 579 U.S. ___, 136 S.Ct. 2243 (2016). Petitioner also objects to the Magistrate Judge's conclusion that the predicate crime for his convictions under § 924(c), i.e., a Hobbs Act robbery, in violation of 18 U.S.C. § 1951,1 constitutes a crime of violence within the meaning of 18 U.S.C. § 924(c)(3)(A). He argues that it does not, because it can be accomplished through acts that do not require the use, attempted use, or threatened use of violent force, for example, through extortion or threats of violence to the property of another. Petitioner objects to the Magistrate Judge's finding that this latter claim is barred by the one-year statute of limitations provided for in 28 U.S.C. § 2255(f). According to Petitioner, his claim is timely in view of the United States Supreme Court's June 23, 2016, decision in Mathis.
Petitioner's arguments are not well taken.
The Armed Career Criminal Act ("ACCA"), imposes a 15-year mandatory minimum sentence, inter alia, on certain federal defendants who have three prior convictions for a "violent felony," including "burglary, arson, or extortion." 18 U.S.C. § 924(e)(2)(B)(ii). "To determine whether a past conviction is for one of those offenses, courts compare the elements of the crime of conviction with the elements of the `generic' version of the listed offense—i.e., the offense as commonly understood." Mathis, 136 S.Ct. at 2247. In so doing, courts apply the "categorical approach," focusing solely on the elements of the crime of conviction and ignoring the particular facts of the case. Id. at 2248 (citing Taylor v. United States, 495 U.S. 575, 600-601 (1990)). However, where a statute lists elements in the alternative, defining multiple crimes, courts apply a "modified categorical approach," and may look "to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of" in order to determine whether a defendant's prior conviction qualifies as an ACCA predicate offense. Id. at 2249 (citing Shepard v. United States, 544 U.S. 13, 26 (2005); Taylor, 495 U.S., at 602). A prior crime qualifies as an ACCA predicate only if its elements are the same as, or narrower than, those of the generic offense. Id. at 2247.
In Mathis, referred to by the Petitioner, the Supreme Court considered an Iowa burglary statute that enumerated various factual means by which a defendant could commit a single element of the offense. Id. at 2249.2 Significantly, the elements of the statute "cover[ed] a greater swath of conduct than the elements of the relevant ACCA offense," or generic burglary offense. Id. at 2251 (citation omitted). The Supreme Court held that the district court erred in applying a modified categorical approach to determine that Mathis' prior burglary convictions qualified as ACCA predicate offenses, stating that, where the elements of a state statute are broader than those of a listed generic offense, the crime cannot qualify as an ACCA predicate regardless of the particular facts of the case. Id. Under these circumstances, therefore "even if [the defendant's] conduct fits within the generic offense, the mismatch of elements saves the defendant from an ACCA sentence. . . . The itemized construction gives a sentencing court no special warrant to explore the facts of an offense, rather than to determine the crime's elements and compare them with the generic definition." Id.
Plainly, such are not the circumstances here. This case does not involve application of the ACCA or determination of whether Petitioner's prior convictions qualify as predicate offenses for his status as a career offender. Petitioner challenges the validity of his April 9, 2002, convictions made pursuant to his guilty plea on interference with interstate commerce by means of robbery, in violation of 18 U.S.C. § 1951, and use of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii) and (2). (ECF No. 8). In Johnson, the Supreme Court expressly noted, "[t]oday's decision does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act's definition of a violent felony." Johnson, 135 S. Ct. at 2563.
Moreover, this Court does not agree that Mathis repudiates use of the modified categorical approach or calls into doubt the Sixth Circuit's decision in Taylor, 495 U.S. at 600 (holding that Johnson does not invalidate the residual clause § of 18 U.S.C. 924(c)). See United States v. Justice, No. 1:09-cr-180, 2016 WL 4194376, at *3-4 (S.D. Ohio Aug. 9, 2016) (stating that Mathis "contains no repudiation of the modified categorical approach, but rather a continued endorsement.") The Sixth Circuit has continued to use the modified-categorical approach since the decision in Mathis. See id. at *4 (citing United States v. Rafidi, No. 15-4095, ___ F.3d ___, 2016 WL 3670273, (6th Cir. July 11, 2016). Further,
Taylor was a direct appeal from convictions and a death sentence for carjacking resulting in death, kidnapping resulting in death, and using a firearm to commit murder while committing carjacking and kidnapping. 814 F.3d at 345. Taylor had argued that Johnson 2015 compelled finding that § 924(c)(3)(B) was unconstitutionally vague. Id. at 375. The Taylor court noted that carjacking and kidnapping had been found to be "crimes of violence" under § 924(c)(3)(B), the residual clause of 924(c)(3), not the elements clause, which is § 924(c)(3)(A). Id. at 376.
United States v. Justice, 2016 WL 4194376, at *3. In Taylor, the Sixth Circuit distinguished the ACCA's residual clause from that of 18 U.S.C. § 924(c)(3)(B), at issue in these proceedings:
First, the statutory language of § 924(c)(3)(B) is distinctly narrower, especially in that it deals with physical force rather than physical injury. Second, the ACCA residual clause is linked to a confusing set of examples that plagued the Supreme Court in coming up with a coherent way to apply the clause, whereas there is no such weakness in § 924(c)(3)(B). Third, the Supreme Court reached its void-for-vagueness conclusion only after struggling mightily for nine years to come up with a coherent interpretation of the clause, whereas no such history has occurred with respect to § 924(c)(3)(B). Finally, the Supreme Court was clear in limiting its holding to the particular set of circumstances applying to the ACCA residual clause, and only some of those circumstances apply to § 924(c)(3)(B).
Taylor, 814 F.3d at 378. Contrary to Petitioner's argument here, Taylor did not apply the modified categorical approach. See United States v. Justice, 2016 WL 4194376, at *3 (reaching same conclusion).
Additionally, as noted by the Magistrate Judge, "in numerous cases decided by the Supreme Court, the Sixth Circuit Court of Appeals, and several other Circuit Courts of Appeals, the fact that Hobbs Act robbery served as the predicate offense for convictions under 18 U.S.C. § 924(c)" has not been questioned. See id. at *5 (citing Alleyne v. United States, 133 S.Ct. 2151, 2155-56 (2013); United States v. Maddox, 803 F.3d 1215, 1217 (11th Cir. 2015); United States v. McBride, No. 14-1851, 2015 U.S. App. LEXIS 14885, at *1, 2015 WL 5004909 (3rd Cir. Aug. 24, 2015); United States v. Richardson, 793 F.3d 612, 617 (6th Cir.2015); United States v. Adams, 789 F.3d 713, 713 (7th Cir. 2015); see also United States v. Mendez, 992 F.2d 1488, 1491 (9th Cir. 1993) (noting that Hobbs Act robbery "indisputably qualifies as a crime of violence.").
Finally, this Court agrees that nothing prevented Petitioner from raising his claim that the Hobbs Act categorically does not constitute a crime of violence under § 924(c)(3)(A) long before the Supreme Court's decisions in Johnson and Mathis. See United States v. Justice, 2016 WL 4194376, at *2 ("This argument assumes the principles or precedents involved are timeless. They are not."). Such claim does not involve application of the residual clause at issue in Johnson or use of the modified categorical approach under the circumstances present in Mathis. In any event, Petitioner does not refer to, and this Court is not aware of any cases holding that Mathis is to be applied retroactively to cases on collateral review. Other courts have concluded to the contrary. See, e.g., Dawkins v. United States, No. 16-2683, ___ F.3d ___, 2016 WL 3854238, at *2 (7th Cir. July 15, 2016); King v. United States, No. 16-22261-CIV-LENARD/WHITE, 2016 WL 4487785, at *9 (S.D. Fla. Aug. 24, 2016).
For all of these reasons and for the reasons detailed by the Magistrate Judge, Petitioner's Objection (ECF No. 55) is OVERRULED. The Report and Recommendation (ECF No. 54) is ADOPTED and AFFIRMED. The motion to vacate under 28 U.S.C. § 2255 (ECF No. 52) is DISMISSED. Petitioner's motion to hold proceedings in abeyance (ECF No. 53) is DENIED.
IT IS SO ORDERED.
