United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
HARRIS TOLIVER JUDGE
to 28 U.S.C. § 636(b) and Special Order 3, Movant David
Antwone Ricks' motion to vacate, set aside, or correct
sentence under 28 U.S.C. § 2255 was referred to the
undersigned United States magistrate judge for case
management, including findings and a recommended disposition.
As detailed herein, the motion should be
2016, Ricks pled guilty to interference with commerce by
robbery (four Hobbs Act robbery counts) and discharging a
firearm in relation to the Hobbs Act robberies and was
sentenced to total term of 190 months' imprisonment-70
months for the Hobbs Act robberies and a consecutive
120-month term for discharging a firearm-and a two-year term
of supervised release. Crim. Doc. 88. He did not
appeal, but subsequently filed the instant, timely, pro
se Section 2255 motion on July 21, 2017. Doc.
1. Ricks asserts that his counsel was constitutionally
ineffective in failing to challenge the residual-clause
definition of “crime of violence” in 18 U.S.C.
§ 924(c)(3)(B), based on Johnson v. United States,
__ U.S. __, 135 S.Ct. 2551 (2015), Mathis v. United
States, __ U.S. __, 136 S.Ct. 894 (2016), and the
subsequent decision in Sessions v. Dimaya, __ U.S.
__, 138 S.Ct. 1204 (2018). Doc. 1 at 4; Doc. 2 at 4-8.
The Government filed a response in opposition. Doc.
5. Although Ricks did not file a reply, the cases he
cites are not relevant to his sentence and, as such, he is
not entitled to relief.
Johnson v. United States, __ U.S. __, 135 S.Ct.
2551, 2563 (2015), the Supreme Court held that imposing an
increased sentence under the residual clause of the Armed
Career Criminal Act (ACCA), 18 U.S.C. § 924(e), violates
the Constitution's guarantee of due process.
Subsequently, in Welch v. United States, __ U.S. __,
136 S.Ct. 1257, 1268 (2016), the Supreme Court found
Johnson retroactively applicable to cases on
collateral review. More recently, in Sessions v. Dimaya,
__ U.S. __, 138 S.Ct. 1204, 1223 (2018), the Court
extended the Johnson holding to a similarly worded
clause in 18 U.S.C. § 16's definition of
crime of violence. And while it is anticipated that the
Supreme Court also will consider whether the residual clause
of Section 924(c) is unconstitutionally vague in
light of Dimaya, see United States v.
Davis, 903 F.3d 483, 486 (5th Cir. 2018), cert.
granted, 139 S.Ct. 782 (2019), that issue is of no
moment here since Ricks was not sentenced under Section
924(c)'s residual clause.
Section 924(c) conviction is predicated on Hobbs Act
robberies, which qualify as crimes of violence under
Section 924(c)(3)(A)'s elements clause, and not
the residual clause found in Section 924(c)(3)(B).
See United States v. Bowens, 907 F.3d 347,
353-54 (5th Cir. 2018), cert. denied, No.
18-7612, 2019 WL 358681 (U.S. Mar. 4, 2019) (holding that
“binding circuit precedent forecloses [Defendant's]
claim that Hobbs Act robbery is not a [crime of violence]
predicate under 18 U.S.C. § 924(c)(3)(A)” (citing
United States v. Buck, 847 F.3d 267, 274-75 (5th
Cir. 2017)); Davis, 903 F.3d at 485 (“Whatever
arguments may be made for opposing Hobbs Act robbery's
inclusion under the elements clause as a crime of violence,
Dimaya has not affected them, and therefore, they
are foreclosed to us in light of
such, there is no merit to Ricks' challenge to his
Section 924(c) conviction and any objection by counsel would
have been futile. Counsel cannot be deemed ineffective for
failing to make a futile objection. United States v.
Preston, 209 F.3d 783, 785 (5th Cir. 2000)
(“failure to make a frivolous objection does not cause
counsel's performance to fall below an objective level of
reasonableness” (quotations and quoted case omitted)).
Consequently, Ricks' claim of ineffective assistance of
counsel fails on the merits.
Section 2255 Motion should be DENIED, and this case should be
DISMISSED WITH PREJUDICE
FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
of this report and recommendation will be served on all
parties in the manner provided by law. Any party who objects
to any part of this report and recommendation must file
specific written objections within 14 days after being served
with a copy. See 28 U.S.C. § 636(b)(1);
Fed.R.Civ.P. 72(b). To be specific, an objection must
identify the finding or recommendation to which objection is
made, state the basis for the objection, and indicate the
place in the magistrate judge's report and recommendation
where the disputed determination is found. An objection that
merely incorporates by reference or refers to the briefing
before the magistrate judge is not specific. Failure to file
specific written objections will bar the aggrieved party from
appealing the factual findings and legal conclusions of the
magistrate judge that are accepted or adopted by the district
court, except ...