Melicharek v. United States
- Lorna Schofield
- 1:21-cv-01116
- U.S. District Court · Southern District of New York
- 5
In Melicharek v. United States, Judge Schofield denied Melicharek’s challenge because attempted Hobbs Act robbery remains a qualifying crime of violence.
John Melicharek, whose firearm conviction and additional consecutive 60-month sentence remained in place.
What happened
In Melicharek v. United States, John Melicharek asked the court to vacate his conviction for using and carrying a firearm during a crime of violence. He argued that the crimes underlying that conviction no longer qualified under federal law.
Melicharek had pleaded guilty and received an additional consecutive 60-month prison term on the firearm count. The Second Circuit allowed him to file this later challenge. The district court agreed that conspiracy to commit Hobbs Act robbery was no longer a qualifying offense, but considered whether attempted Hobbs Act robbery still qualified.
Judge Lorna G. Schofield denied the petition because attempted Hobbs Act robbery remains a crime of violence under the firearm statute’s force requirement. The court also declined to issue a certificate of appealability and directed the clerk to close the case.
The detailed version
- Melicharek v. United States · No. 1:21-cv-01116
- Lorna Schofield
- Aug. 27, 2021
Background
John Melicharek filed the petition without a lawyer under 28 U.S.C. § 2255, asking the court to vacate his conviction on Count Seven. That count charged using and carrying a firearm in furtherance of a crime of violence, and attempting to do so, under 18 U.S.C. § 924(c). Melicharek had pleaded guilty in 2008 to, among other counts, conspiracy to commit Hobbs Act robbery and Count Seven. He received 60 additional consecutive months of imprisonment on Count Seven.
Melicharek argued that the predicate offenses supporting Count Seven were no longer crimes of violence after Supreme Court decisions including Johnson v. United States and Sessions v. Dimaya. He filed the current petition on April 28, 2018. On February 3, 2021, the Second Circuit authorized him to file a later § 2255 motion based on a new constitutional rule and sent the matter to the district court for further consideration.
Court’s Analysis
The court first held that the petition met the requirements for a later § 2255 motion, including the requirements under 28 U.S.C. §§ 2244 and 2255(h). The Second Circuit had authorized the filing, and it had determined that the petition involved a new constitutional rule.
The court then addressed the merits. It accepted that conspiracy to commit Hobbs Act robbery was no longer a valid predicate for a § 924(c) conviction after Johnson and United States v. Davis. The Government also conceded that the other predicate offense was attempted Hobbs Act robbery, rather than completed Hobbs Act robbery.
The court relied on the Second Circuit’s decision in United States v. McCoy, which held that attempted Hobbs Act robbery qualifies as a crime of violence under § 924(c)’s force clause. The force clause covers offenses involving the attempted use of physical force. Because attempted Hobbs Act robbery necessarily involves attempting to use force, the court held that Melicharek’s Count Seven conviction remained valid.
Disposition
Judge Schofield denied the petition. Because Melicharek had not made a substantial showing that a constitutional right was denied, the court also ruled that no certificate of appealability would issue. The clerk was directed to close the case.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.