Rodriguez v. United States

• Court: District Court, W.D. Wisconsin
• Decided: July 18, 2023
• Docket: 3:22-cv-00676
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

CHRISTIAN DEJESUS RODRIGUEZ,

Petitioner, OPINION and ORDER v. 22-cv-676-jdp UNITED STATES OF AMERICA, 18-cr-26-jdp

Respondent.

Christian DeJesus Rodriguez, appearing pro se, pleaded guilty to three counts of Hobbs Act robbery, in violation of 18 U.S.C. § 1951, and brandishing a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). I sentenced him to a mandatory minimum term of 84 months on the brandishing-a-firearm charge and one day on the Hobbs Act robbery charges. Rodriguez has filed a motion for postconviction relief under 28 U.S.C. § 2255. Dkt. 39.1 Rodriguez contends that his convictions should be vacated under United States v. Taylor, 142 S. Ct. 2015 (2022), and United States v. Davis, 139 S. Ct. 2319 (2019). Rodriguez is incorrect about the application of both cases to his convictions. He argues that under Taylor brandishing a firearm “is no longer a crime of violence,” Dkt. 39, at 4, which wasn’t the ruling in Taylor nor does it correctly reflect the nature of Rodriguez’s convictions. The question under § 924(c)(1)(A)(ii) is whether Rodriguez brandished a firearm during a “crime of violence.” The underlying crime associated with this count was a December 6, 2017 robbery of a gas station—one of his Hobbs Act robbery convictions. In Taylor, the United States Supreme Court ruled that an attempted Hobbs Act robbery conviction did not constitute a

1 Citations are to Rodriguez’s criminal case. crime of violence under the elements clause of § 924(c). 142 S. Ct. at 2020. But Rodriguez pleaded guilty to a completed Hobbs Act robbery, not to an attempt charge. The Court of Appeals for the Seventh Circuit has ruled that Hobbs Act robbery is a crime of violence under § 924(c)’s elements clause. United States v. McHaney, 1 F.4th 489, 490 (7th Cir. 2021) (“This court has

declared several times that Hobbs Act robbery meets the definition of a crime of violence under 18 U.S.C. § 924(c) and thus is a qualifying predicate crime under the statute.”). Rodriguez also argues that his convictions are now invalid under Davis, in which the Court invalidated the “residual clause” of the provision defining crimes of violence, § 924(c)(3)(B). 139 S. Ct. at 2324. Rodriguez brings this claim far too late; he had a year after the 2019 issuance of Davis to raise a claim about that case, and he appears to have procedurally defaulted the argument by failing to raise it before his plea or on direct appeal. See 28 U.S.C. § 2255(f)(3) (one-year period of limitations); McCoy v. United States, 815 F.3d 292, 295 (7th

Cir. 2016) (“a claim cannot be raised for the first time in a § 2255 motion if it could have been raised at trial or on direct appeal”). But even if Rodriguez qualified for a rare exception to the limitations and procedural default rules, his argument fails on the merits. Davis doesn’t apply to his completed Hobbs Act robbery convictions because they are crimes of violence under the elements clause of § 924(c), not under the residual clause. Because Rodriguez’s claims have no merit, I will deny his § 2255 motion. Under Rule 11 of the Rules Governing Section 2255 Proceedings, the court must issue or deny a certificate of appealability when entering a final order. To obtain a certificate of

appealability, the applicant must make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Tennard v. Dretke, 542 U.S. 274, 282 (2004). This means 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 quotations and citations omitted). Because reasonable jurists would not debate the outcome here, I will not issue Rodriguez a certificate of appealability.

ORDER IT IS ORDERED that: 1. Christian DeJesus Rodriguez’s motion under 28 U.S.C. § 2255, Dkt. 39, is DENIED. 2. Rodriguez is DENIED a certificate of appealability. He may seek a certificate from the court of appeals under Fed. R. App. P. 22. Entered July 18, 2023. BY THE COURT:

/s/ ________________________________________ JAMES D. PETERSON District Judge