United States District Court, D. Nebraska
F. Rossiter, Jr., United States District Judge
December 15, 2003, defendant Jonathan Ramone Franklin
(“Franklin”) pled guilty pursuant to a written
plea agreement in Case. No. 8:03CR395 to two counts of bank
robbery, in violation of 18 U.S.C. §§ 2113(a) and
2, and one count of use of a firearm during and in relation
to a crime of violence (bank robbery), in violation of 18
U.S.C. §§ 924(c) and 2. The Court sentenced him to
concurrent terms of 78 months in prison for each bank-robbery
conviction and a consecutive term of 84 months in prison for
the firearm conviction. The Court also imposed a term of
three years of supervised release on each count, to run
November 22, 2017, while still on supervised release for his
2003 convictions, Franklin robbed the Security Home Bank in
Malmo, Nebraska, at gunpoint. Franklin again pled guilty
pursuant to a written plea agreement in No. 8:17CR374 to bank
robbery, in violation of 18 U.S.C. §§ 2113(a) and
2, and brandishing a firearm during and in relation to a
crime of violence (bank robbery), in violation of 18 U.S.C.
§§ 924(c) and 2.
condition of his plea agreement, Franklin also admitted he
violated the conditions of his supervised release in Case.
No. 8:03CR395 by committing new crimes. Based on that
admission, the Court revoked Franklin's supervised
joint sentencing hearing on October 12, 2018, the Court
sentenced Franklin in No. 8:17CR374 to 77 months in prison
for the bank-robbery conviction and 84 months in prison for
the weapon conviction, to run consecutively. The Court also
imposed concurrent terms of supervised release of three years
and five years, respectively. For the supervised-release
violation in Case. No. 8:03CR395, the Court sentenced
Franklin to 37 months in prison with no supervision to
follow, to run consecutively to his sentence in Case. No.
before the Court is Franklin's Motion for Appointment of
Counsel (Filing No. 302 in Case. No. 8:03CR395 and Filing No.
172 in No. 8:17CR374). Franklin- stating his filing date for
post-conviction relief under 28 U.S.C. § 2255 draws
near-asks for assistance of counsel based on United
States v. Davis, 588 U.S. ___, ___, 139 S.Ct. 2319, 2336
has no general right to appointed counsel with respect to any
request he might make for post-conviction relief under §
2255. See Id. § 2255(g); Pennsylvania v.
Finley, 481 U.S. 551, 555 (1987). The Court may appoint
counsel if Franklin is financially eligible and “the
interests of justice so require.” 18 U.S.C. §
3006A(a)(2)(B). But, unless an evidentiary hearing is
required, the appointment of counsel is entirely within the
Court's discretion. See Abdullah v. Norris, 18
F.3d 571, 573 (8th Cir. 1994). In exercising that discretion,
the Court considers the legal and “factual complexity
of the case, the petitioner's ability to investigate and
present his claim, and any other relevant factors.”
Id. If a petitioner raises frivolous or clearly
meritless claims, appointment of counsel is unwarranted.
Id. at 572.
citing Davis and echoing that decision's
observation that “a vague law is no law at all, ”
588 U.S. at ___, 139 S.Ct. at 2323, Franklin does not say
much about why the Court should appoint counsel to assist
him. According to Franklin, “[a]fter the ruling in
Davis, 924 (c)'s are unconstitutionally vague
and if this is so, then [his] plea is no longer valid.”
Franklin's reliance on Davis is misplaced.
924(c)(1)(A) authorizes enhanced penalties for using or
carrying a firearm “during and in relation to any crime
of violence.” Under § 924(c)(3), the phrase
“crime of violence” is defined as a felony
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of
(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.
(A) is often referred to as the elements clause or force
clause and subsection (B) is often referred to as the
residual clause. See Davis, 588 U.S. at ___, 139
S.Ct. at 2324; Estell v. United States, 924 F.3d
1291, 1292 (8th Cir. 2019).
Davis, the Supreme Court decided the residual clause
of “§ 924(c)(3)(B) is unconstitutionally
vague.” 588 U.S. at ___, 139 S.Ct. at 2336. But that
limited holding is no help to Franklin. He pled guilty to
bank robbery, in violation of 18 U.S.C. § 2113(a). And
the Eighth Circuit has repeatedly held that bank robbery
under § 2113(a) is categorically a “crime of
violence” under the elements clause of §
924(c)(3)(A) and that “convictions and sentences under
§ 924(c)(1)(A) for using a firearm during and in
relation to [a bank robbery] are not unconstitutional.”
Estell, 924 F.3d at 1292-93. Davis does not
cast any doubt on the constitutionality of the elements
clause of § 924(c)(3)(A). See Kidd v. United
States, No. 18-2465, 2019 WL 2864451, at *2 (8th Cir.
July 3, 2019) (per curiam) (deciding Davis did not
afford the petitioner any relief because § 924(c)(3)(A)
applied to his case); accord United States v.
Williams, 910 F.3d 1084, 1093 (8th Cir. 2018).
the holding in Davis is not fertile ground for
post-conviction relief in these circumstances, Franklin's