UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

FORT WAYNE DIVISION 

UNITED STATES OF AMERICA ) 

 ) 

 v. ) CAUSE NO.: 1:15-CR-42-1-TLS 

 ) [1:18-CV-264] 

 ) 

FREDDIE L. CHURCH, JR. ) 

 

OPINION AND ORDER 

 The Defendant, Freddie L. Church, Jr., is serving a sentence for attempting to interfere 

with commerce by robbery in violation of 18 U.S.C. ' 1951(a) and (b) (Count 3), and carrying a 

firearm during and in relation to a crime of violence in violation of 18 U.S.C. ' 924(c) (Count 5). 

For purposes of the Count 5 § 924(c) conviction, the crime of violence was the attempted Hobbs 

Act robbery that was set forth in Count 3. The Defendant now seeks to vacate his conviction and 

sentence under § 924(c) [Motion for Relief Under 28 U.S.C. § 2255(f)(3), ECF No. 322]. The 

Defendant predicates his Motion on the Supreme Court’s decision in Sessions v. Dimaya, 138 S. 

Ct. 1204 (2018). He argues that attempted Hobbs Act robbery is not a crime of violence under 

the categorical approach. 

 The Government has filed a Response [ECF No. 330], arguing that Dimaya has no 

bearing on whether Hobbs Act robbery remains a crime of violence under § 924(c)’s elements 

clause, and thus does not extend the one-year filing deadline. 

ANALYSIS 

The Defendant’s judgment of conviction was entered on May 10, 2017. He filed his 

Motion to Vacate on August 21, 2018. A motion filed under 28 U.S.C. § 2255 is subject to a oneyear limitations period that runs from: 
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(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 governmental 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 

been discovered through the exercise of due diligence. 

28 U.S.C. § 2255(f). Accordingly, a defendant seeking collateral review under § 2255 will have 

one year from the date on which his judgment of conviction is final to file his petition, id. § 

2255(f)(1); see also Dodd v. United States, 545 U.S. 353, 357 (2005), or one year from three 

limited, alternative circumstances, 28 U.S.C. § 2255(f)(2)–(4). Here, subsection (f)(3) is the only 

subsection that could render the Defendant’s Motion timely. 

 The problem for the Defendant is that his Motion is not based on a right that has been 

newly recognized by the Supreme Court and made retroactively applicable to cases on collateral 

review. Dimaya cannot be the source of that right. Dimaya did not involve § 924(c). It involved 

the materially identical 18 U.S.C. § 16(b), which is incorporated into the Immigration and 

Nationality Act’s definition of the types of past criminal convictions that render an alien 

deportable after entering the United States. Dimaya,138 S. Ct. at 1211. In finding § 16(b) 

unconstitutionally vague, the Court stated that “just like ACCA’s residual clause, § 16(b) 

‘produces more unpredictability and arbitrariness than the Due Process Clause tolerates.’” 

Dimaya, 138 S. Ct. at 1223 (quoting Johnson, 135 S. Ct. at 2558). Dimaya did “not have 

anything to do with the elements clause” of § 924(c) or any other statute, “and § 2255(f)(3) 

therefore does not afford [him] a new one-year period to seek collateral relief on a theory that the 

elements clause does not apply to a particular conviction.” Stanley v. United States, 827 F.3d 
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562, 565 (7th Cir. 2016) (holding that a conviction that the sentencing court counted as violent 

under the elements clause of the Sentencing Guidelines was outside the scope of Johnson v. 

United States, 135 S. Ct. 2251 (2015)). 

 Here, the Defendant was found guilty of carrying a firearm in relation to a crime of 

violence because attempted Hobbs Act robbery “has as an element the use, attempted use, or 

threatened use of physical force against the person or property of another.” 18 U.S.C. § 

924(c)(3)(A). “Hobbs Act robbery is a ‘crime of violence’ within the meaning of § 

924(c)(3)(A).” United States v. Anglin, 846 F.3d 954, 965 (7th Cir. 2017)1; see also United 

States v. Rivera, 847 F.3d 847, 848–49 (7th Cir. 2017) (stating that “[b]ecause one cannot 

commit Hobbs Act robbery without using or threatening physical force, . . . Hobbs Act robbery 

qualifies as a predicate for a crime-of-violence conviction”). The Defendant could not have been 

found guilty of the attempted Hobbs Act robbery as charged in Count 3 of the Indictment unless 

he “specific[ally] intent[ed] to commit the full robbery” and took “a substantial step toward that 

end.” United States v. Muratovic, 719 F.3d 809, 815 (7th Cir. 2013). Accordingly, his offense of 

conviction had, at the very least, the attempted or threatened use of physical force against the 

person or property of another, which is sufficient to put it squarely within the elements clause 

definition. The Defendant’s reliance on cases involving only a conspiracy, as opposed to an 

attempt, to commit robbery are inapplicable to his Count 3 conviction. 

 

1 The Supreme Court later vacated the judgment in Anglin, 138 S. Ct. 126 (2017), and remanded the case 

to the Seventh Circuit for reconsideration of the sentence in light of Dean v. United States, 137 S. Ct. 

1170 (2017). However, the Seventh Circuit has since observed that the Supreme Court’s disposition of 

Anglin has not affected the portion of its ruling on the Hobbs Act. United States v. Fox, 878 F.3d 574, 579 

(7th Cir. 2017). In Fox, the Seventh Circuit reaffirmed that “Hobbs Act robberies are crimes of violence 

under Section 924(c)(3)(A).” Fox, 878 F.3d at 574.
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 Because the Court considered the Defendant’s conviction for attempted Hobbs Act 

robbery to be violent under the elements clause, § 924(c)(3)(A), and nothing in Dimaya creates a 

newly recognized right related to the elements clause, the Defendant’s § 2255 motion is 

untimely. 

CERTIFICATE OF APPEALABILITY 

 Under Rule 11(a) of the Rules Governing § 2255 proceedings, the Court issues or denies 

a certificate of appealability under 28 U.S.C. § 2253(c)(2) when it enters a final order adverse to 

the applicant. A certificate of appealability may be issued “only if the applicant has made a 

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Rule 11 of 

Rules Governing Section 2255 Proceedings. The substantial showing standard is met when 

“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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation 

marks omitted); Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983). “Where a plain procedural 

bar is present and the district court is correct to invoke it to dispose of the case, a reasonable 

jurist could not conclude either that the district court erred in dismissing the petition or that the 

petitioner should be allowed to proceed further.” Slack, 529 U.S. at 484. 

 No reasonable jurists could debate whether the Defendant’s Motion presents a viable 

ground for relief. Dimaya is not applicable and does not expand the statute of limitations. 

Accordingly, the Court declines to issue a certificate of appealability as to the Defendant’s 

Motion. 
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CONCLUSION 

 For the reasons stated above, the Defendant’s Motion for Relief Under 28 U.S.C. § 

2255(f)(3) [ECF No. 322] is DISMISSED. The Court declines to issue a Certificate of 

Appealability. 

SO ORDERED on April 17, 2019. 

 s/ Theresa L. Springmann 

CHIEF JUDGE THERESA L. SPRINGMANN 

UNITED STATES DISTRICT COURT