UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

United States of America,

Plaintiff/Respondent,

v. Criminal Case No. 15-20262 

Civil Case No. 19-10239

Charles Albert Walker, Sean F. Cox

United States District Court Judge

Defendant/Petitioner.

______________________________/

OPINION AND ORDER DENYING WALKER’S MOTION UNDER 28 U.S.C. § 2255

AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

Acting pro se, Petitioner Charles Albert Walker filed this habeas petition pursuant to 28

U.S.C. § 2255, asserting that he is entitled to relief from his convictions on three counts of aiding

and abetting bank robbery, in violation of 18 U.S.C. § 2113(a), and two counts of using a firearm

in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). Walker argues that he is

entitled to relief because § 924(c)(3)’s residual clause is unconstitutionally vague. Because the files

and records of the case conclusively show that Walker is not entitled to habeas relief, an evidentiary

hearing is not necessary and the matter is ripe for the Court’s decision. For the reasons below, the

Court will deny the motion and decline to issue a certificate of appealability.

BACKGROUND

Over the course of a few months, Walker and his co-defendant robbed three Detroit-area

banks at gun-point, making off with just over $190,000. After leading police on a high-speed chase,

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Walker was arrested and indicted on bank robbery and gun charges. (ECF No. 41). 

On February 24, 2016, Walker pleaded guilty, pursuant to a Rule 11 plea agreement, to three

counts of aiding and abetting bank robbery, in violation of 18 U.S.C. § 2113(a), and two counts of

using a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). (ECF No. 53). 

On July 8, 2016, the Court sentenced Walker to a total term of imprisonment of 462 months. (ECF

No. 68). 

On July 21, 2016, Walker filed a notice of appeal. (ECF No. 69). On June 29, 2017, the

United States Court of Appeals for the Sixth Circuit dismissed Walker’s appeal because of the

appellate waiver contained in Walker’s Rule 11 plea agreement. (ECF No. 83). 

On January 23, 2019, Walker filed a motion to vacate, set aside, or correct his sentence under

28 U.S.C. § 2255. (ECF No. 96). In his motion, Walker argues that § 924(c)(3)’s definition of

“crime of violence” is unconstitutionally vague because it contains a “residual clause” that is

identical to those invalidated by the Supreme Court in Sessions v. Dimaya, 138 S.Ct. 1204 (2018)

and Johnson v. United States, 135 S.Ct. 2551 (2015). In passing, Walker also argues that he “may

be entitled to some form of general relief” under the newly enacted First Step Act. (ECF No. 96,

PageID 597).

On March 25, 2019, the Government filed a response in opposition to Walker’s motion. The

Government argues that motion should be denied for two reasons. First, the Government contends

that the motion is untimely. Second, the Government argues that the constitutionality of §

924(c)(3)’s residual clause is irrelevant to this case because the underlying predicate offense—bank

robbery in violation of 18 U.S.C. § 2113(a)—is a crime of violence under § 924(c)(3)’s elements

clause and therefore still qualifies as a crime of violence. The Government also argues that the First

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Act does not apply retroactively. 

STANDARD OF REVIEW

Walker’s motion is brought pursuant to 28 U.S.C. § 2255, which 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. 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).

Defendants seeking to set aside their sentences pursuant to § 2255 have the burden of

establishing their case by a preponderance of the evidence. McQueen v. U.S., 58 Fed. App’x 73, 76

(6th Cir. 2003). When a defendant files a § 2255 motion, he or she must set forth facts establishing

entitlement to relief. Green v. Wingo, 454 F.2d 52, 53 (6th Cir. 1972); O’Malley v. United States,

285 F.2d 733, 735 (6th Cir. 1961). “Conclusions, not substantiated by allegations of fact with some

probability of verity, are not sufficient to warrant a hearing.” Green, 454 F.2d at 53; O’Malley, 285

F.2d at 735 (citations omitted).

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ANALYSIS

Even if Walker’s petition is timely, it is meritless because (1) his underlying offense—bank

robbery—is a crime of violence under 18 U.S.C. § 924(c)(3)’s elements clause, and (2) the Court

is unable to discern how the First Step Act entitles Walker to habeas relief.

I. Bank Robbery is a Crime of Violence under 18 U.S.C § 924(c)(3)’s Elements Clause 

18 U.S.C § 924(c) criminalizes the use or carrying of a firearm “during and in relation to any

crime of violence.” The statute defines a “crime of violence” as an offense that is a felony and “(A)

has as an element the use, attempted us, 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). Subpart (A) of this definition is known as the “elements clause,” and subpart (B) is

known as the “residual clause.” United States v. Davis, 139 S.Ct. 2319, 2324 (June 24, 2019). 

Walker’s argument that Dimaya and Johnson cast doubt on the constitutionality of §

924(c)(3)’s residual clause is well-taken. In fact, the Supreme Court recently held that § 924(c)(3)’s

residual clause is unconstitutionally vague. See Davis, 139 S.Ct. at 2336. However, the invalidation

of the residual clause is no victory for Walker. His underlying crime of violence was bank robbery

and, as the Sixth Circuit has recognized, “[a] necessary element of bank robbery is the use of ‘force

and violence’ or ‘intimidation.’”United States v. Henry, 722 Fed.App’x 496, 500 (6th Cir. 2018)

(citing 18 U.S.C. § 2113(a)). Accordingly, bank robbery in violation of 18 U.S.C. 2113(a) qualifies

as a crime of violence under § 924(c)(3)’s elements clause. Id.; see also United States v. Jackson,

918 F.3d 467, 486 (6th Cir. March 12, 2019); In re Pollard, – F.3d –, 2019 WL 3451173 at *3 (11th

Cir. July 31, 2019) (finding that a petitioner was not likely to show that Davis has invalidated his

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sentence because he had been convicted of armed bank robbery, which is a crime of violence under

the elements clause); Johnson v. United States, – Fed.App’x –, 2019 WL 3491233 (8th Cir. Aug.

1, 2019) (Mem.) (in a post-Davis case, holding that aiding and abetting bank robbery qualifies as

a crime of violence under the elements clause); United States v. Kornacki, 2019 WL 3530833 at *2

(E.D. Mich. Aug. 2, 2019). Thus, Walker’s § 924(c) convictions remain valid, even in the wake of

Davis.

II. The Court Cannot Discern How The First Step Act Entitles Walker to Habeas Relief

At the end of his motion, Walker adds:

Also with the United States just passing new law “THE FIRST STEP ACT” / The

Criminal Justice Reform Act” [t]he Petitioner Mr. Walker would also say he may be

entitled to some form of general relief under these new laws and new standards that

the courts will be using daily in sentencing offends [sic] from now on.” 

(ECF No. 96, PageID 597).

“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived. It is not sufficient for a party to mention a possible argument

in the most skeletal way, leaving the court to ... put flesh on its bones.” McPherson v. Kelsey, 125

F.3d 989, 995-96 (6th Cir. 1997). Walker does not articulate, and the Court is unable to discern,

how the First Step Act entitles him to habeas relief. Accordingly, this argument is waived for the

purposes of this habeas petition.1

III. Certificate of Appealability

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Moreover, to the extent that Walker actually alleges an error, it would be nonconstitutional and he has not shown 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. Accordingly, Walker is not entitled to habeas relief on this

ground.

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For the reasons above, the Court concludes that Walker is not entitled to habeas relief.

A certificate of appealability must issue before Walker may appeal the Court’s denial of his

§ 2255 motion. 28 U.S.C. § 2253(c)(1)(B); FED. R. APP. P. 22(b).

28 U.S.C. § 2253(c)(2) provides that a certificate of appealability may issue only if a

petitioner makes a substantial showing of the denial of a constitutional right. As the Supreme Court

has explained this standard:

. . . the petitioner need not show that he should prevail on the merits. He has already

failed in that endeavor. Rather, he must demonstrate that the issues are debatable

among jurists of reason; that a court could resolve the issues [in a different manner];

or that the questions are adequate to deserve encouragement to proceed further.

Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983). As the Court has stated, “[w]here a district court

has rejected the constitutional claim on the merits, the showing required to satisfy 2253(c) is

straightforward: The petitioner must demonstrate that reasonable jurists would find the district

court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S.

473, 484 (2000).

If a certificate of appealability is issued by a district court, it must indicate which specific

issue or issues satisfy the required showing. 28 U.S.C. § 2253(c)(3).

Here, Walker’s § 2255 motion raised two arguments for relief. The Court concludes that

reasonable jurists would not find the Court’s assessment of Walker’s claims debatable or wrong. 

The Court shall therefore decline to issue a certificate of appealability.

CONCLUSION AND ORDER

For the reasons stated above, the Court DENIES Walker’s § 2255 Motion.

IT IS FURTHER ORDERED that the Court DECLINES TO ISSUE A CERTIFICATE

OF APPEALABILITY.

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IT IS SO ORDERED.

s/Sean F. Cox 

Sean F. Cox

United States District Judge

Dated: August 30, 2019

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