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Rumbley v. United States

United States District Court, E.D. Michigan, Southern Division

June 21, 2017

Lorenzo Rumbley, Movant,
v.
United States of America, Respondent. Civil No. 16-11515

          ORDER DENYING MOTION TO HOLD CASE IN ABEYANCE AND FOR LEAVE TO FILE REPLY BRIEF [75]; DENYING MOVANT'S MOTION TO VACATE SENTENCE UNDER § 2255 [50]; DENYING AS MOOT MOVANT'S REQUEST TO REMOVE APPOINTED COUNSEL; AND DENYING CERTIFICATE OF APPEALABILITY

          Arthur J. Tarnow Senior U.S. District Judge

         Movant Lorenzo Rumbley filed a Motion to Vacate Sentence Under 28 U.S.C. §2255 [50] on April 26, 2016. The Government responded to the Motion to Vacate on February 16, 2017 [74]. On March 6, 2017, Mr. Rumbley filed a Motion to Hold Case in Abeyance and for Leave to File Reply Brief [75].

         Movant's Motion to Hold Case in Abeyance and for Leave to File Reply Brief [75] is DENIED because the cases to which he cites have no bearing on his own case. Movant's Motion to Vacate Sentence Under § 2255 [50] is also DENIED because the Sixth Circuit recently determined that Hobbs Act Robbery, the crime for which Mr. Rumbley was convicted, is a crime of violence under the elements clause of 18 U.S.C. § 924(c)(3). See United States v. Gooch, 850 F.3d 285, 291-92 (6th Cir. 2017). Accordingly, Movant is denied a certificate of appealability. Lastly, Movant's request to remove appointed counsel Ellen Dennis is DENIED AS MOOT.

         Factual Background

         On February 25, 2015, Defendant Lorenzo Rumbley was charged via superseding indictment [42] with four counts of interference with commerce by robbery, in violation of 18 U.S.C. § 1951(a) and 18 U.S.C. § 2; and four counts of brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) and §2. Mr. Rumbley pled guilty to Counts 3 and 4 - interference with commerce by robbery and brandishing a firearm during and in relation to a crime of violence, respectively - on March 11, 2015. The Court sentenced Defendant to 12 months' imprisonment on Count 3 and 84 months' imprisonment on Count 4, Count 4 to run consecutive to Count 3.

         Mr. Rumbley raised two issues in his original motion to vacate: ineffective assistance of counsel, in violation of his Sixth Amendment right to counsel, and the unconstitutional vagueness of the predicate offense, in light of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015).

         Analysis

         I. Motion to Hold Case in Abeyance and for Leave to File Reply Brief

         Movant claims that the Court should hold his case in abeyance because Lynch v. Dimaya, 137 S.Ct. 31 (2016), which is currently pending in the Supreme Court, will assist the Court in making its decision. He further states that the Court should wait to decide this case because a petition for writ of certiorari was filed in United States v. Taylor, 814 F.3d 340 (6th Cir. 2016).

         Mr. Rumbley's motion must be denied for several reasons. First, in Dimaya v. Lynch, the Ninth Circuit held that the residual clause, § 16(b), of the Immigration and Nationality Act (“INA”), was unconstitutionally vague. 803 F.3d 1110, 1120 (9th Cir. 2015). The Sixth Circuit recently made the same determination. Shuti v. Lynch, 828 F.3d 440, 451 (6th Cir. 2016) (“[T]he INA's definition of ‘crime of violence' . . . [is] void for vagueness.”). The Shuti Court also specifically noted that its decision was “wholly consistent with our conclusion [in Taylor] . . . that 18 U.S.C. § 924(c)'s definition of crime of violence was not unconstitutionally vague.” Id. at 449 (emphasis added). This is because

[T]he statute at issue in Taylor is a criminal offense and ‘creation of risk is an element of the crime.' See Johnson, 135 S.Ct. at 2557 . . . Unlike the . . . INA, which require[s] a categorical approach to stale predicate convictions, 18 U.S.C. § 924(c) is a criminal offense that requires an ultimate determination of guilty beyond a reasonable doubt - by a jury, in the same proceeding.

Id.

         Furthermore, as the Government highlights, Mr. Rumbley's case involves the elements clause of § 924(c). Accordingly, “Dimaya, which concerns the validity of the residual clause of section 16, has no bearing on whether Hobbs Act robbery is a crime of violence under the elements clause of 924(c).” (Gov.'s Resp., Dkt. 79 at 4-5).

         It is also inappropriate for the Court to delay its decision because there is no connection between Mr. Rumbley's case and Taylor. The Taylor Court held that the residual clause of § 924(c)(3) was not unconstitutionally vague. See Taylor, 814 F.3d at 376-79. As previously ...


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