Washington v. United States

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

EARNEST WASHINGTON, )

)

Movant, )

)

v. ) No. 4:24-CV-295 RLW

)

UNITED STATES OF AMERICA, )

)

Respondent. )

MEMORANDUM AND ORDER

This matter is before the Court on review of Earnest Washington’s motion to dismiss his

criminal indictment, which was received by the Court on February 22, 2024. [ECF No. 1]. The

motion indicates an intent to seek relief from Washington’s criminal judgment pursuant to several

Supreme Court cases. As a result, the Court construes the motion as one brought pursuant to 28

U.S.C. § 2255. The Court will deny the motion as an unauthorized second or successive motion

under 28 U.S.C. § 2255, and this action will be dismissed.

Background

In 1998, Arnold Young headed a heroin distribution organization responsible for arranging

shipments of heroin from Los Angeles, California to St. Louis. United States v. Washington, 318

F.3d 845, 851 (8th Cir. 2003). Young distributed heroin in St. Louis through Anthony Smith and

Tom Manley until Smith stole approximately $30,000 of heroin from Young. During April 1998,

Young, who was in California, called Manley in St. Louis to solicit the murder of Anthony Smith

for failure to pay for the heroin Smith received from Young. Id. Manley, in turn, asked movant

and his co-defendant, Wendell Fortenberry, to murder Smith in exchange for five ounces of heroin.

Id. Manley testified at trial that on the morning of May 6, 1998, he was paged by Fortenberry who

told him that Anthony Smith had been “taken care of.” Id. Manley said that he met Fortenberry at

a St. Louis address on Palm Avenue and gave him two and one-half ounces of heroin. According

to Manley, Fortenberry told him that he had shot Smith and movant had shot Gerondrick Jackson.

Id. Jackson was allegedly shot because he “was in the wrong place at the wrong time.” Id. Manley

then went home and contacted movant, whom he gave two and one-half ounces of heroin. Id.

Arnold Young later flew from Los Angeles to St. Louis and reimbursed Manley for the heroin he

gave movant and Fortenberry. Id.

On September 30, 1999, Young, Fortenberry, and movant were charged in a two-count

indictment for murder for hire and conspiracy to commit murder for hire in violation of 18 U.S.C.

§ 1958(a). United States v. Washington, 4:99-CR-296 SNL (E.D. Mo.). A joint jury trial in May

2000 resulted in a hung jury, and the Court declared a mistrial. Id. at ECF No. 217. The government

filed a second superseding indictment on June 15, 2000, charging Young, Fortenberry, and movant

in a three-count indictment, adding the count of conspiracy to distribute heroin in violation of 21

U.S.C. § 846. Id. at ECF No. 225. After a seven-day trial, the jury returned a verdict of guilty for

Fortenberry on all three counts. The jury returned a verdict of not guilty for movant on the murder

for hire count but found him guilty of conspiracy to commit murder for hire and conspiracy to

distribute heroin. Fortenberry and movant were each sentenced by the district court to a term of

life imprisonment. Movant was sentenced on November 16, 2000, while Fortenberry was not

sentenced until May 11, 2001. On January 31, 2003, the Eighth Circuit Court of Appeals affirmed

movant’s judgment and conviction. United States v. Washington, 318 F.3d 845 (8th Cir. 2003).

In October 2004, movant filed his first motion to vacate under § 2255. Washington v.

United States, 4:04-CV-1360 SNL (E.D. Mo. 2005). The Court denied the motion on the merits

on December 29, 2005. Id. The Eighth Circuit Court of Appeals refused to issue movant a

certificate of appealability and dismissed the appeal on June 11, 2007. Washington v. United

States, No. 06-2288 (8th Cir. 2007).

Movant filed a second habeas action in June 2014, arguing that he should be released from

confinement based on the United States Supreme Court’s decision in Alleyne v. United States, 570

U.S. 99 (2013). Washington v. United States, No. 4:14-CV-1117 JCH (E.D. Mo.). Finding the

motion to be successive, the action was summarily dismissed on July 1, 2014. Movant did not

appeal.

Movant filed his third motion to vacate in January 2015, alleging that the United States

Supreme Court’s decision in Burrage v. United States, 571 U.S. 204 (2014), created a newly

recognized right of statutory interpretation that justified his release from prison. Washington v.

United States, No. 4:15-CV-216 JCH (E.D. Mo.). On March 5, 2015, the Court found movant’s

motion to vacate successive, but transferred the motion to the Court of Appeals so that movant

could seek permission to file a second or successive habeas corpus. Id. The Court of Appeals

denied movant’s request for authorization to file a successive habeas application on May 26, 2015.

Washington v. United States, No. 15-1526 (8th Cir. 2015).

Movant filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the district

where he was confined, the Western District of Louisiana, on August 30, 2017.1 Washington v.

Barnhart, No. 1:17-CV-01089 DDD-JPM, 2018 WL 1354658 (W.D. La. 2018). Movant claimed

entitlement to proceed under the savings clause of § 2255(e) because of the Supreme Court’s

decision in Burrage v. United States, 571 U.S. 204 (2014). On January 18, 2018, U.S. Magistrate

Judge Joseph H.L. Perez-Montes recommended that movant’s petition be denied and dismissed

because Burrage was inapplicable to movant’s case. On March 15, 2018, Senior U.S. District

Judge Dee D. Drell adopted the Report and Recommendation and dismissed movant’s § 2241

petition. Id. Movant appealed to the Fifth Circuit Court of Appeals, but the district court’s

1Movant is currently housed in the United States Penitentiary in Pollock, Louisiana (USP Pollock).

dismissal was affirmed on appeal on December 31, 2019. Washington v. Barnhart, 788 F. App’x

978 (5th Cir. 2019).

Movant filed the instant motion to vacate, his fourth motion pursuant to § 2255, on

February 22, 2024. [ECF No. 1]. Movant titles his motion as one to dismiss his criminal indictment

and, for this reason, the motion was initially filed in his criminal action. However, a review of

movant’s motion indicates that he is attacking the legality of his conviction. Thus, his motion was

refiled as one brought pursuant to 28 U.S.C. § 2255. See Sun Bear v. United States, 644 F.3d 700,

704 (8th Cir. 2011) (stating that the purpose of § 2255 is “to afford federal prisoners a remedy

identical in scope to federal habeas corpus” regarding jurisdictional and constitutional errors).

In his motion to vacate, movant argues that under Apprendi, a fact that increases the

statutory maximum punishment must be alleged in the indictment and found by a jury. See

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), and Alleyne v United States, 570 U.S. 99

(2013). Movant’s trial took place in August 2000, shortly after Apprendi was decided on June 26,

2000. See Apprendi, 530 U.S. at 466. The statute under which movant was convicted provides for

a statutory sentencing range of zero to ten years, but if death results the statutory sentencing range

is life imprisonment or the death penalty. See 18 U.S.C. § 1958(a). Movant asserts that the jury’s

failure to make a finding beyond a reasonable doubt that death resulted because of his actions,

means that his statutory penalty should not have been increased from 10 years to life imprisonment.

Movant further contends that after Apprendi, the legal landscape changed with the Supreme

Court’s decisions in United States v. Davis, 139 S. Ct. 2319 (2019),2 Borden v. United States, 141

2The Supreme Court held in United States v. Davis that the “residual clause” of § 924(c)(3)(B),

which defines “crime of violence,” was unconstitutionally vague. See also Jones v. United States, 39 F.4th

523, 526 (8th Cir. 2022) (“Davis applies retroactively to cases on collateral review.”).

S. Ct. 1817 (2021),3 United States v. Taylor, 142 S. Ct. 2015 (2022),4 and Wooden v. United

States, 142 S. Ct. 1063 (2022).5 Movant argues that his non-violent conspiracy offenses were

“enhanced and aggravated by” the notion that he was receiving payment for a crime of violence.

See Movant’s Mem. in Supp. (ECF No. 2). Thus, he appears to cite the aforementioned Supreme

Court cases for the proposition that federal “crimes of violence” sentencing cases are now

calculated in such a way that his current sentence is unlawful.

The Court notes that in addition to the instant motion to vacate, movant has a motion for

compassionate release under the First Step Act pending in his criminal case, filed by appointed

counsel. United States v. Washington, 4:99-CR-296 RLW (E.D. Mo.), ECF No. 438.

3The Supreme Court in Borden v. United States reviewed § 924(c)’s force clause, which defines

violent felonies as those involving the “use of physical force against the person of another.” It held that the

direct object -“use of force against the person of another” - introduces a “conscious object” that force is

“consciously directed” against. Borden, 141 S. Ct. at 1825, 1826. A concurrence in the judgment concluded

that the word “use” applies “only to intentional acts designed to cause harm.” Borden, 141 S. Ct. at 1835

(Thomas, J., concurring in the judgment). Borden does not have any bearing on movant’s case as the crimes

for which he was convicted cannot be committed with a mens rea of ordinary recklessness. See, e.g., Janis

v. United States, 73 F.4th 628, 630 (8th Cir. 2023) (“Borden does not resolve Janis’s case – second-degree

murder cannot be committed with ordinary recklessness.”) and United States v. Larry, 51 F.4th 290, 292 (8th

Cir. 2022) (Borden holds only that the force clause categorically excludes offenses that can be committed

recklessly.)

4In United States v. Taylor, the Supreme Court held that attempted Hobbs Act robbery is not a

crime of violence under the force clause because the offense does not require a “communicated threat of

force.” 142 S. Ct. at 2024. Hobbs Act robbery requires the unlawful taking of property by means of actual

or threatened use of force. 18 U.S.C. § 1951(a). Taylor does not apply to movant’s case because he was not

convicted of any attempt offenses.

5In Wooden v. United States, the Supreme Court explained how courts should determine whether a

defendant's prior convictions were committed on different occasions. 142 S. Ct. 1063, 1070. It observed

that “a range of circumstances may be relevant to identifying episodes of criminal activity,” including

timing, proximity, and the character and relationship of the offenses. Id. at 1071. The Court also stated that

“[i]n many cases, a single factor—especially of time or place—can decisively differentiate occasions.” Id.

Movant has not indicated how this case affects his criminal conviction and it is not apparent to the Court.

Discussion

Washington’s motion is a “second or successive motion” within the meaning of 28 U.S.C.

§§ 2244 and 2255, but it has not been certified by the United States Court of Appeals for the Eighth

Circuit.

28 U.S.C. § 2255(h) establishes the certification requirement for a second or successive

motion under § 2255:

A second or successive motion must be certified as provided in section 2244 by a

panel of the appropriate court of appeals to contain--

(1) newly discovered evidence that, if proven and viewed in light of the

evidence as a whole, would be sufficient to establish by clear and convincing

evidence that no reasonable factfinder would have found the movant guilty of the

offense; or

(2) a new rule of constitutional law, made retroactive to cases on collateral

review by the Supreme Court, that was previously unavailable.

28 U.S.C. § 2255(h).

Pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings for the United States

District Courts, the Court is required to undertake a preliminary review of the motion before

directing the United States to respond. Having reviewed the motion, and for the reasons discussed

below, movant’s § 2255 motion must be denied and dismissed as successive.

A district court is not “required to entertain an application for a writ of habeas corpus to

inquire into the detention of a person pursuant to a judgment of a court of the United States if it

appears that the legality of such detention has been determined by a judge or court of the United

States on a prior application for a writ of habeas corpus.” 28 U.S.C. § 2244(a). Rather, under the

Antiterrorism and Effective Death Penalty Act of 1996, a federal inmate seeking relief under 28

U.S.C. § 2255 must first “receive certification from the court of appeals to file a second or

successive 2255 motion.” United States v. Brown, 915 F.3d 1200, 1201 (8th Cir. 2019). See also

28 U.S.C. § 2244(b)(3)(A) (“Before a second or successive application permitted by this section

is filed in the district court, the applicant shall move in the appropriate court of appeals for an order

authorizing the district court to consider the application”).

There is no indication that movant has sought, much less obtained, the necessary

authorization before filing the instant motion. As a result, the Court lacks jurisdiction to consider

the motion. A district court may choose to either transfer a successive motion to vacate or deny

and dismiss the action. See 28 U.S.C. § 1631. For the following reasons, the Court finds that it

would not be in the interest of justice to transfer this case to the United States Court of Appeals

for the Eighth Circuit and will instead dismiss the motion to vacate because the claims it asserts

are barred and/or time barred.

In United States v. Moss, 252 F.3d 993, 997 (8th Cir. 2001), the Eighth Circuit held that an

Apprendi-type argument not raised on direct appeal could not be raised in collateral motion for

relief because it had been reasonably available in the first appeal. In Moss, the Eighth Circuit

further held that the Apprendi rule was not a “watershed rule”6 allowing retroactive application.

Id. In Walker v. United States, 810 F.3d 568, 574-75 (8th Cir. 2016), the Eighth Circuit utilized

the reasoning espoused in Moss to find that the holding in Alleyne v. United States, 570 U.S. 99

(2013),7 was not retroactive to cases on collateral review. Thus, movant is barred from asserting

claims under either Apprendi or Alleyne in this motion because he did not raise these issues on

direct appeal.

Movant also appears to argue that the crimes for which he was convicted were “crimes of

violence,” such that his convictions should be held unconstitutional under subsequent Supreme

6See Teague v. Lane, 489 U.S. 288 (1989).

7Alleyne found that any fact that increases the mandatory minimum sentence must be submitted to

a jury and found beyond a reasonable doubt. Alleyne, 570 U.S. at 104.

Court decisions and he should be resentenced. See, e.g., Davis, 139 S. Ct. at 2336. Movant was

not sentenced to crimes that have traditionally been found to be “crimes of violence,” however.

Movant was found guilty of conspiracy to commit murder for hire and conspiracy to distribute

heroin. See 18 U.S.C. § 1958(a) and 21 U.S.C. § 846. Movant’s conspiracy to distribute heroin

conviction cannot be considered a “crime of violence.” See, e.g., Stewart v. United States, 4:20-

CV-1880 CDP, 2023 WL 7128458, *6, (E.D. Mo. Oct. 30, 2023). The question then, is whether

conspiracy to commit murder for hire is a crime of violence, such that movant’s sentence should

be reduced under Davis’s holding.

The Court need not decide this issue because, even assuming conspiracy to commit murder

for hire is a crime of violence, movant cannot raise a claim under Davis because the claim is time

barred. Under 28 U.S.C. § 2255(f)(3), the right to argue for a sentence reduction under Davis

expired one year after June 24, 2019, the date on which Davis was decided. See Davis, 139 S. Ct.

2319. To be timely, any motion raising a Davis claim had to be filed by June 24, 2020. The instant

motion was not filed until February 22, 2024, and this appears to be the first time movant has

raised an argument under Davis. As a result, movant’s argument is time barred and without merit.

Certificate of Appealability

The Court has considered whether to issue a certificate of appealability. To issue a

certificate of appealability, the Court must find a substantial showing of the denial of a federal

constitutional right. See Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997). A substantial

showing is a showing that issues are debatable among reasonable jurists, a court could resolve the

issues differently, or the issues deserve further proceedings. Cox v. Norris, 133 F.3d 565, 569 (8th

Cir. 1997) (citing Flieger v. Delo, 16 F.3d 878, 882–83 (8th Cir. 1994)). Movant has made no such

showing in this case, and the Court will not issue a certificate of appealability.

Accordingly,

IT IS HEREBY ORDERED that the instant motion to vacate is DENIED and

DISMISSED, without prejudice, as successive because movant did not obtain the required

authorization from the United States Court of Appeals for the Eighth Circuit.

IT IS FURTHER ORDERED that no certificate of appealability shall issue.

A separate Order of Dismissal will accompany this Memorandum and Order.

RONNIE L. WHITE

UNITED STATES DISTRICT JUDGE

Dated this 4th day of March, 2024.