United States District Court, N.D. Illinois, Western Division
G. Reinhard United States District Judge
following reasons, the court denies defendant's 28 U.S.C.
§ 2255 motion ; . The court declines to issue a
certificate of appealability. This matter is terminated.
March 24, 2006, defendant Robert Hawkins was sentenced to 324
months imprisonment for convictions for Hobbs Act robbery, 18
U.S.C. § 1951(a) (Count One), using and carrying a
firearm in relation to a crime of violence (the Hobbs Act
robbery), pursuant to 18 U.S.C. § 924(c) (Count Two),
and being a felon in possession of a firearm and an armed
career criminal pursuant to 18 U.S.C. §§ 924(g)(1)
and 924(e) (Count Three). See United States v.
Hawkins, Case No. 04 CR 50028-1 (N.D. Ill.).
30, 2016, defendant filed a motion challenging his sentence
pursuant to 28 U.S.C. § 2255. In the motion, defendant
argues that he was improperly sentenced as an armed career
criminal under ACCA, § 924(e), because his three
predicate felonies cannot survive Johnson v. United
States, ___U.S.___, 135 S.Ct. 2551 (2015). See
; . Defendant also challenges his 18 U.S.C. §
924(c) conviction for the use of a firearm during the course
of a Hobbs Act robbery, 18 U.S.C. § 1951(a). The
government has filed a response , and defendant has filed
a reply . These matters are now ripe for the court's
initial matter, with regard to defendant's challenge to
his 18 U.S.C. § 924(c) conviction, the Seventh Circuit
has recently explicitly held that “Hobbs Act robbery is
a ‘crime of violence' within the meaning of 18
U.S.C. § 924(c)(3)(A).” See United States v.
Anglin, 2017___ F.3d___, 2017 WL 359666, at *8 (7th Cir.
Jan. 25, 2017). Notably, defendant does not address this
issue in his appeal. As such, defendant's challenge to
his § 924(c) conviction must fail.
regard to defendant's challenge to his § 924(e)
conviction, defendant was classified as an armed career
criminal under ACCA because of three qualifying prior
convictions: one “aggravated assault” conviction
under Georgia law, one “armed robbery” conviction
under Georgia law, and one “robbery” conviction
under Alabama law. Defendant challenged the aggravated
assault and armed robbery convictions as valid predicates in
his initial motion, see  at 15, but only defended
his challenge to the aggravated assault conviction in his
reply. See . The government contends that all
three are valid predicates.
government points out that defendant's prior predicate
conviction for Alabama common law robbery, which defendant
did not explicitly challenge, is a violent felony under the
elements clause because it puts another in fear of force.
See Carlisle v. State, 484 So.2d 540 (Ala. Crim.
App.1985); United States v. Perez, 571 F. App'x.
495, 497 (7th Cir. 2014). Defendant does not respond to this
argument in his reply and as such would appear to abandon the
challenge. After review, the court agrees that the Alabama
robbery conviction is a valid predicate under ACCA.
prior conviction for armed robbery under Georgia law involved
taking property from the person of another by means of a
firearm. See [16-1] at 6. As the government points
out, the Seventh Circuit has found that introducing a firearm
into a robbery qualifies as a violent felony under the
elements clause. See United States v. Nigg, 667 F.3d
929, 937-938 (7th Cir. 2012). Again, defendant does not
respond to this argument in his reply and as such would
appear to abandon the challenge. The court agrees with the
government that this is a valid ACCA predicate.
defendant challenges his prior conviction for aggravated
assault under Georgia law; it is here that he spends the bulk
of his analysis in his reply. The government contends that
the aggravated assault conviction is a violent felony within
the meaning of ACCA under the elements clause. Under Georgia
law at the relevant time, and as relevant to defendant's
indictment and conviction, the aggravated assault crime reads
as follows: “(a) A person commits the offense of
aggravated assault when he or she assaults: . . . (2) With a
deadly weapon or with any object, device, or instrument
which, when used offensively against a person, is likely to
or actually does result in serious bodily injury.”
O.C.G.A. 16-5-21(a)(2). Assault itself is defined in Georgia
law at the relevant time as either an attempt to commit a
violent injury or an act which places another in reasonable
fear of immediately receiving a violent injury. See
O.C.G.A. 26-1301; see Hudson v. State, 218 S.E.2d
905, 906 (Ga.Ct.App. 1975).
defendant argues that the aggravated battery statute is
indivisible and overly broad, it is nonetheless true that any
conviction for aggravated battery requires a finding that the
defendant committed a simple assault. The elements of assault
under Georgia law are sufficient to make an aggravated
assault a violent felony. The Seventh Circuit has held that
fear of bodily injury qualifies as a violent felony under the
elements clause, as does an attempt to commit a violent
injury. See United States v. Armour, 840 F.3d 904,
907 & n.3 (7th Cir. 2016). As such, the court agrees with
the government that defendant's prior conviction for
aggravated assault under Georgia law qualifies as a violent
felony and is thus a valid predicate under ACCA. For the
foregoing reasons, the court finds that defendant's
§ 2255 motion is without merit and, as such, denies the
motion ; .
defendant attempted to raise constitutional issues in his
§ 2255 motion under Johnson, the court finds
his collateral claims must be dismissed as without merit and
does not find that “reasonable jurists could debate
whether . . . the petition should have been resolved in a
different matter[.]” Id. Thus, because there
is no substantial constitutional ...