UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff/Respondent,

v. Case Nos. 14-20565, 18-11505

MARKIESE KING, HON. AVERN COHN

Defendant/Petitioner.

_______________________________/

MEMORANDUM AND ORDER

DENYING MOTION UNDER 28 U.S.C. § 2255 (Doc. 75)

AND

DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

I. Introduction

This is a criminal case. Defendant/Petitioner, Markiese King, has filed, through

counsel, a motion vacate his sentence under 28 U.S.C. § 2255 essentially contending

that Hobbs Act robbery does not qualify as a predicate “crime of violence” to support a

conviction under 18 U.S.C. § 924(c) after the Supreme Court’s decisions in Johnson v.

United States, 135 S. Ct. 2551 (2015) and Sessions v. Dimaya, 138 S. Ct. 1204 (2018). 

The government contends that King’s motion is untimely, procedurally defaulted and

lacks merit. For the reasons that follow, the motion will be denied for lack of merit.1

1

A prisoner who files a motion under § 2255 challenging a federal conviction is

generally entitled to “a prompt hearing,” at which the district court is to “determine the

issues and make findings of fact and conclusions of law with respect thereto.” 28 U.S.C.

§ 2255. However, a court may deny a motion under section 2255 “without conducting

an evidentiary hearing [where] ‘the motion and the files and records of the case

conclusively show that [the petitioner] is entitled to no relief.’ ” Cole v. United States,

No. 17-6061, 2018 WL 4372199, at *2 (6th Cir. Mar. 30, 2018) (quoting 28 U.S.C. §

2255(b) ). Because the record shows that King is not entitled to relief, a hearing is not

necessary.
II. Background

In January 2014, King led a string of armed robberies at auto parts stores. The

robberies followed a simple pattern: two individuals entered a store with their faces

covered, with at least one armed with a semiautomatic handgun, and demanded the

cash in the registers. At times, the robbers forced the employees to the back of the

store to obtain money from a safe as well. In one instance, King stole a handgun from a

store employee. The men hit locations in Ferndale, Detroit, Royal Oak, and Warren

before King was caught. 

A grand jury indicted King for six robberies. See Doc. 1, Indictment. The

charges included six counts of Hobbs Act robbery, in violation of 18 U.S.C. § 1951, and

six counts of brandishing a firearm during and in relation to a crime of violence, in

violation of 18 U.S.C. § 924(c), for the following robberies: O’Reilly Auto Parts Warren

1/25/2014, O’Reilly Auto Parts Ferndale 1/27/14, O’Reilly Auto Parts Detroit 1/27/14,

Autozone Detroit 1/27/14, Citi Trends Detroit 1/27/14, Autozone Royal Oak 1/28/14.

King pleaded guilty to two of the robberies—the robbery of an O’Reilly Auto Parts

store in Warren on 1/25/2014 and the robbery of an O’Reilly Auto Parts store in Detroit

on 1/27/2014. See Doc. 40, Plea Agreement. In exchange, the government agreed to

dismiss the remaining eight counts.

The Court sentenced King to 180 months in prison. See Doc. 48: Judgment. 

King did not appeal. Nearly two years later, the Court reduced his sentence to 150

months under Rule 35(b). See Doc. 74, Amended Judgment. Ten months after the

amended judgment, King filed the instant motion under § 2255. 

2
III. Legal Standard

28 U.S.C. § 2255 provides:

A prisoner in custody under a sentence of a court established by Act of Congress

claiming the right to be released upon the ground that the sentence imposed was

in violation of the Constitution or laws of the United States, or that the court was

without jurisdiction to impose such a sentence, or that the sentence was in

excess of the maximum authorized by law, or is otherwise subject to collateral

attack, may move the court which imposed the sentence to vacate, set aside, or

correct the sentence.

28 U.S.C. § 2255(a). To prevail on a § 2255 motion, “a petitioner must demonstrate the

existence of an error of constitutional magnitude which has a substantial and injurious

effect or influence on the guilty plea or the jury's verdict.” Humphress v. United States,

398 F.3d 855, 858 (6th Cir. 2005). A movant can prevail on a § 2255 motion alleging

non-constitutional error only by establishing a “fundamental defect which inherently

results in a complete miscarriage of justice, or an error so egregious that it amounts to a

violation of due process.” Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999).

As “[§] 2255 is not a substitute for a direct appeal,” Regalado v. United States,

334 F.3d 520, 528 (6th Cir. 2003) (citing United States v. Frady, 456 U.S. 152, 167-68

(1982)), “a prisoner must clear a significantly higher hurdle than would exist on direct

appeal” to merit collateral relief, Frady, 456 U.S. at 166. Though non-constitutional

errors are generally outside the scope of § 2255 relief, see United States v. Cofield, 233

F.3d 405, 407 (6th Cir. 2000), a petitioner can prevail on a § 2255 motion alleging

non-constitutional error “by establish[ing] a ‘fundamental defect which inherently results

in a complete miscarriage of justice, or, an error so egregious that it amounts to a

violation of due process,’ ” Watson, 165 F.3d at 488 (internal quotation marks omitted)

(quoting United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990)). Accordingly,

3
alleged sentencing errors, including the proper application of the guidelines, “does not

warrant collateral relief under § 2255 absent a complete miscarriage of justice.” Jones,

178 F.3d at 796.

IV. Analysis

A. Timeliness/Procedural Default

The government first argues that King’s claim is untimely and procedurally

defaulted because he did not raise it on direct appeal. Motions to vacate sentences are

required to be filed within one year from the latest of:

(1)The date on which the judgment of conviction becomes final;

(2)The date on which the impediment to making a motion created by

governmental action in violation of the Constitution or laws of the United States is

removed, if the movant was prevented from making a motion by such a

government action;

(3)The date on which the right asserted was initially recognized by the Supreme

Court, if that right has been newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review; or

(4)The date on which the facts supporting the claim or claims presented could

have not been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f).

Claims not raised on direct appeal are procedurally defaulted and may not be

raised on collateral review unless the petitioner shows either (1) good “cause” excusing

his procedural default and “actual prejudice” resulting from the error of which he

complains, or (2) “actual innocence.” Johnson v. Lee, 136 S. Ct. 1802, 1805 (2016);

Massaro v. United States, 538 U.S. 500, 504 (2003); Bousley v. United States, 523 U.S.

614, 622 (1998); United States v. Frady, 456 U.S. 152, 167–68 

Putting aside the government’s well taken arguments as to timeliness and

default, the Court is not required to address issues relating to the sufficiency of the

4
pleadings or procedural hurdles before evaluating the merits of the claims. See

Johnson v. United States, 735 F. App'x 1007, 1010 (11th Cir. 2018) (“The government

contends [that the petitioner] procedurally defaulted on his Johnson claim because he

failed to raise it in his direct appeal. We decline to address the procedural default issue

because his Johnson claim loses on the merits in any case.”). 

B. The Merits

King moves to vacate his sentence in light of Johnson v. United States, 135 S.

Ct. 2551 (2015) and Sessions v. Dimaya, 138 S.Ct. 1204 (2018). Johnson held that the

residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), was

unconstitutionally vague. In Dimaya, the Supreme Court applied the reasoning of

Johnson to the Immigration and Nationality Act and invalidated the residual clause in 18

U.S.C. § 16(b).

Section 924(c) makes it illegal to use a firearm during and in relation to a “crime

of violence.” It defines what qualifies as a “crime of violence” in two ways:

[A]n offense that is a felony and

(A) has as an element the use, attempted use, or

threatened use of physical force against the person or

property of another, or

(B) that 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.

18 U.S.C. § 924(c)(3). Subsection (c)(3)(A), called the elements clause, looks to the

elements of the offense and whether the elements involve the use, attempted use, or

threatened use of force capable of causing bodily harm. Subsection (c)(3)(B) is called

the residual clause and looks to the risk of force posed by the offense. An offense need

5
only satisfy the elements clause or the residual clause to qualify as a predicate crime of

violence.

Here, the predicate offense is Hobbs Act robbery. The Hobbs Act, 18 U.S.C. §

1951, prohibits interference with interstate commerce by robbery or extortion. 

King’s claim must fail if the offense, Hobbs Act robbery, is a crime of violence. Whether

a crime is a “crime of violence” is determined by “looking to the statutory definition of the

crime, rather than to the evidence presented to prove it.” United States v. Taylor, 176

F.3d 331, 337 (6th Cir. 1999). Under the Hobbs Act, robbery is defined as

[T]he unlawful taking or obtaining of personal property from the person or in the

presence of another, against his will, by means of actual or threatened force, or

violence, or fear of injury, immediate or future, to his person or property, or

property in his custody or possession, or the person or property of a relative or

member of his family or of anyone in his company at the time of the taking or

obtaining.

18 U.S.C. § 1951(b)(1). 

Multiple courts have held that “Hobbs Act robbery qualifies as a crime of violence

under the force clause of section 924(c)(3)(A), not the residual clause.” See e.g.,

Washington v. United States, No. 11-20483, 2016 WL 4089133, at *1 (E.D. Mich. Aug.

2, 2016); Byrd v. United States, 1:16-cv-186, 2016 WL 4009884, at *2 (E.D. Tenn. July

25, 2016) (noting that even if Johnson’s reasoning invalidated § 924(c)’s residual

clause, Hobbs Act robbery would remain a crime of violence under the force clause of §

924(c)). The Sixth Circuit joined a number of other circuits with its decision in United

States v. Gooch, 850 F.3d 285 (6th Cir. 2017), when it found that “Hobbs Act robbery

constitutes a crime of violence.” Id. at 292. Thus, because Hobbs Act robbery is a

crime of violence, King’s conviction under the force clause of § 924(c) is valid and

6
unaffected by Johnson or Dimaya. See In re Gordon, No. 18-3449, 2018 WL 3954189,

at *1 (6th Cir. Aug. 14, 2018) (“Even if the Supreme Court had announced that Dimaya

applies to § 924(c)(3)(B), that rule has no effect on Gordon’s case because his

convictions for Hobbs Act robbery qualify as crimes of violence under § 924(c)(3)(A) as

offenses having ‘as an element the use, attempted use, or threatened use of physical

force against the person or property of another.’ ”) (citing United States v. Gooch, 850

F.3d 285, 291-92 (6th Cir.), cert. denied, 137 S. Ct. 2230 (2017) ). See also Fenderson

v. United States, No. 13-20316, 2018 WL 4619902, at *3 (E.D. Mich. Sept. 26, 2018).

Moreover, there is no question that King’s conduct involved a substantial risk that

physical force would be used against the employees and that any resistance would be

met with force. Thus, his conviction under § 924(c) based on a Hobbs Act robbery is

valid under the force clause of § 924(c)(3)(A).

Moreover, even if subpart B, the residual clause, were relied upon to establish

that Hobbs Act robbery is a crime of violence, King cannot prevail. In United States v.

Taylor, the Sixth Circuit held that § 924(c)’s residual clause “is considerably narrower

than the statute invalidated by the Court in Johnson ....” and is not unconstitutionally

vague. 814 F.3d 340, 375 (6th Cir. 2016). Although the language in § 924(c)(3)(B) is

virtually identical to that of 18 U.S.C. § 16(b), which the Supreme Court held in Dimaya

to be void for vagueness, the Sixth Circuit recently confirmed post-Dimaya that Hobbs

Act robbery continues to be a predicate “crime of violence” in this circuit for a conviction

under either clause of § 924(c). United States v. Richardson, 906 F.3d 417, 425 (6th

Cir. Oct. 11, 2018). Although in Richardson, the Sixth Circuit noted that the holding in

Taylor “stands on uncertain ground” after Dimaya, it remains binding. See also Moody

7
v. United States, No. 3:17-CV-00611, 2018 WL 6591425, at *15 (M.D. Tenn. Dec. 13,

2018).

V. Conclusion

For the reasons stated above, the motion is DENIED. Further, jurists of reason

would not find the Court’s ruling debatable. Accordingly, the Court DENIES a certificate

of appealability under 28 U.S.C. § 2253(c)(1)(a).2 See Slack v. McDaniel, 529 U.S. 473,

484-85 (2000). 

SO ORDERED.

S/Avern Cohn 

AVERN COHN

UNITED STATES DISTRICT JUDGE

Dated: 3/6/2019

Detroit, Michigan

2

“The district court must issue or deny a certificate of appealability when it enters

a final order adverse to the applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28

U.S.C. foll. § 2254.

8