Ruff v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL CASE NO. 1:16-cv-00156-MR

[CRIMINAL CASE NO. 4:96-cr-00056-MR-1]

TIMOTHY LAMONT RUFF, )

)

Petitioner, )

)

vs. ) O R D E R

)

UNITED STATES OF AMERICA, )

)

Respondent. )

________________________________ )

THIS MATTER is before the Court on Petitioner’s Motion for

Resentencing [CV Doc. 22]1; Petitioner’s second Motion for Resentencing

[CV Doc. 23]; and Petitioner’s “Motion of Rebuttal for Time Extension for the

Government” [CV Doc. 24].

I. BACKGROUND

Petitioner was convicted by plea on one count of conspiracy to commit

a robbery in violation of 18 U.S.C. § 1951, one count of robbery in violation

of 18 U.S.C. § 1951, and one count of using a firearm in furtherance of a

1 Citations to the record herein contain the relevant document number referenced

preceded by either the letters “CV” denoting that the document is listed on the docket in

the civil case file number 1:16-cv-00156-MR, or the letters “CR” denoting that the

document is listed on the docket in the criminal case file number 4:96-cr-00056-MR-1.

crime of violence in violation of 18 U.S.C. §§ 924(c), 2. [CR Doc. 68]. The

Court sentenced Petitioner to a total of 360 months’ imprisonment. [Id.]. The

Petitioner unsuccessfully appealed the Court’s judgment. [CR Docs. 70, 80,

81]. The Fourth Circuit also denied Petitioner’s later request for mandamus

relief. [CR Doc. 98]. Plaintiff has previously filed four unsuccessful Section

2255 petitions challenging his conviction and sentence.

On June 6, 2016, Petitioner commenced this action by filing a motion

to vacate pursuant to 28 U.S.C. § 2255. [CV Doc. 1]. In the motion to vacate,

Petitioner contends that his Hobbs Act robbery offense no longer qualifies

as a “crime of violence” in light of Johnson v. United States, 135 S. Ct. 2551

(2015). Consequently, Petitioner asserts that his Hobbs Act offense likewise

cannot support his § 924(c) conviction and such conviction must be vacated.

[Id.]. On June 16, 2016, another Section 2255 motion to vacate, also based

on Johnson, was filed by the Federal Defenders of North Carolina on

Petitioner’s behalf. [Doc. 4]. Because Petitioner had previously filed

unsuccessful Section 2255 motions, he sought and obtained authorization

from the Fourth Circuit to file a second or successive motion. [Id.; CR Doc.

133].

On August 24, 2016, this Court granted the Government’s motion to

stay this action pending a decision by the Fourth Circuit Court of Appeals in

the cases of United States v. Ali, No. 15-4433 (4th Cir.) and United States v.

Simms, No. 15-4640 (4th Cir.). On February 19, 2019, this Court granted

the Government’s motion to continue holding this case in abeyance pending

a decision by the United States Supreme Court in United States v. Davis,

No. 18-431 (cert. granted Jan. 4, 2019). [Doc. 16]. The Court also ordered

that the Government would have 60 days from the date the Supreme Court

issues its decision in Davis within which to file its response in this matter.

[Id.]. On May 20, 2019, the Court granted Petitioner’s motion to terminate

the Federal Defenders’ representation of Petitioner. [Doc. 19].

On June 5, 2019, Petitioner filed a “Motion for Resentencing” (“First

Motion”). [Doc. 22]. In Petitioner’s First Motion, which was filed before Davis

was decided, Petitioner states that he “would like to put this respected court

on notice that when the Supreme Court rules in the Davis case [for] which

Mr. Ruff’s motion [to vacate] was placed in abeyance Mr. Ruff would like to

further challenge his illegal sentence that was based off the 924(c) charge.”

[Doc. 22 at 1]. Specifically, Petitioner argues that:

The gun that Mr. Ruff is charged with the government

never established a nexus of the guns to the alleged

robbery that Mr. Ruff was charged with nor did the

government establish[ ] if Mr. Ruff ever knew or had

possession of the guns that Mr. Ruff is charged with

the only thing the government can prove is the guns

[were] recovered from Mr. Ruff’s suitcase.

[Id.].

On June 24, 2019, the Supreme Court issued its decision in Davis.

United States v. Davis, No. 18-431, --- S. Ct. ---, 2019 WL 2570623 (June

24, 2019). On June 25, 2019, the Court entered a text order lifting the stay

in this case and instructing the Government that it had until August 23, 2019

to file a response in this matter.

On July 1, 2019, Petitioner filed a second “Motion for Resentencing”

(“Second Motion”), in which Petitioner notes that the Supreme Court issued

a decision in Davis on June 24, 2019, and that Petitioner will seek $1 million

for every day he is in custody after that date. Petitioner further states that he

wants an evidentiary hearing and “to be in court” and for every day after July

3, 2019 that he remains in custody “the 1 million doubles per day.” [Doc. 23].

On July 3, 2019, Petitioner filed a “Motion of Rebuttal for Time

Extension for the Government” (“Third Motion”) [Doc. 24], which appears to

be in response to the Court’s June 25, 2019 text order instructing the

Government in accordance with the Court’s previous Order that the

Government had until August 23, 2019 to respond to Petitioner’s motion to

vacate. Petitioner argues that:

The Government doesn’t need anymore time the

government has had a year to prepare for this. This

is a total violation of Mr. Ruff’s 5th Amendment right

to due process. The conduct to which Mr. Ruff was

charged and the charges themselves are violation of

Mr. Ruff’s rights. From the time the Supreme Court

ruled that 924(c)3b [sic] is unconstitutionally vague

as well as conspiracy to commit Hobbs Act robbery

no longer qualifies as a crime of violence. So the pro

se litigant Timothy Lamont Ruff seeks 1 million

dollars per day for punitive damages. For being held

under an illegal sentence.2

[Id. at 1].

II. ANALYSIS

A. First Motion

Although the Petitioner captioned his First Motion as a “Motion for

Resentencing,” it appears in substance to be a motion to amend his motion

to vacate to add another ground for relief. Namely, Petitioner states that he

intends to “further challenge his illegal sentence that was based off the

924(c) charge” because the Government “never established a nexus” of the

guns used in the alleged robbery to the guns found in Petitioner’s

possession, nor did the government establish that Petitioner ever knew or

had possession of the guns that “[he was] charged with.”3 [Doc. 22 at 1].

2 Petitioner also requests a copy of the docket sheet in this case [Doc. 24-2], which the

Court will allow.

3 Petitioner refers to his “illegal sentence.” However, Petitioner was convicted on three

counts. Two of them are not challenged. They each carry a statutory maximum sentence

of 20 years. The sentence Petitioner received was less than such maximum sentence on

the two undisputed counts (20 x 2 = 40 years). Thus, even if Petitioner prevails in this

matter, his sentence is not “illegal.”

Petitioner waived the right to collaterally challenge his criminal

judgment in his plea agreement, except for claims of ineffective assistance

and prosecutorial misconduct. [CR Doc. 45 at 4 (Plea Agreement)]. Now, it

appears Plaintiff seeks to amend his petition to challenge whether he is

factually innocent, as well as actually innocent, of the charge pursuant to 18

U.S.C. §§ 924(c) and 2, using a firearm in furtherance of a crime of violence,

and/or aiding and abetting the same. Petitioner, however, admitted in the

Plea Agreement that he was, in fact, guilty on the three counts for which he

was criminally convicted – that he did, in fact, commit the acts alleged in the

indictment. [CR Docs. 45 at 1; CR 68 at 1 (Criminal Judgment)]. At Plaintiff’s

Rule 11 Inquiry, he swore under oath that (1) he reviewed the Indictment with

his attorney, he knew and understood each element of the offenses charged,

and that if he were to plead not guilty “the government would be required to

prove each element of the offense charged beyond a reasonable doubt;” and

(2) he “enters the plea of guilty because he is in fact guilty of the crime

charged, that he did commit the act(s) charged in the bill of indictment.” [See

CR Doc. 45 at 9, 11].

At Petitioner’s sentencing hearing on March 26, 1997, the Petitioner

stipulated that the evidence contained in the pre-sentence investigation

report (PSR) establishes a factual basis to support a guilty plea by the

Petitioner. [CR Doc. 131 at 3 (Sentencing Transcript)]. The PSR provided

in relevant part as follows:

On 12/27/95, [Timothy] Ruff, Kelvin Lynch and

Michael Brown went to the residence of Wiley Price

to question Price about some bad marijuana he sold.

Price stated nothing was wrong with the marijuana

and that he would not refund their money. Ruff

pointed a pistol at Price, pulled him into the house,

and tied him up. Ruff proceeded to beat Price and

threatened to kill Price and his dog. Meanwhile, at

Ruff’s direction, Lynch and Brown searched the

house for drugs and money…. Ruff, Lynch and

Brown left the residence, taking with them a VCR,

camcorder and a Boito, model BR-7, .20 gauge

double barreled shotgun. Ruff and Brown later took

the Boito shotgun to Harold Guest where the weapon

was sawed off and a pistol grip added.

…

In the early morning hours on 2/22/96, Timothy Ruff,

Kelvin Lynch, Quon Moses, Harold Guest, Christy

Bridges (age 17), and Lynn Hendricks were playing

cards and smoking marijuana at Hendrick’s

apartment. Ruff began telling the others he wanted

to steal a car. Ruff, Lynch, Moses, Guest and

Bridges began planning a robbery. They discussed

several options, and finally decided on Robbs’ Auto

Shop. Guest drew a diagram of the area. Bridges

was directed by Ruff to enter the shop first to gather

information and act as a decoy.

Around 9:00 a.m. that morning, Guest went to work

at Kentucky Fried Chicken. Ruff, Lynch, Moses and

Bridges proceeded to Robbs’ Auto Shop. At

approximately 9:45 a.m., Bridges entered the shop

and approached Johnny Robbs on the pretense she

was interested in purchasing a car. Robbs advised

he was busy and requested she return in 15 minutes.

At approximately 10:20 a.m., Ruff, Lynch, Moses and

Bridges returned. Bridges entered the shop and she

and Robbs proceeded to his office where they

discussed the purchase of an automobile. Amos

Norman, Robbs’ friend, entered the office.

Approximately 4 minutes later, Ruff, Lynch and

Moses entered the shop. Lynch pulled a sawed-off

Boito, model BR-7, .20 gauge double barreled

shotgun, out from under his coat and announced[,] “If

anybody moves, I’ll kill you, I’ll blow you in two.” Ruff

and Bridges forced Robbs and Norman to the

ground…. Ruff and Bridges hog tied the men.

Robbs was forced to reveal the location of the money

and keys to the automobiles. Moses located and

took possession of a bank bag containing $12,800 in

cash and a Sundance, Boa, .25 caliber semi-

automatic pistol. Bridges took keys to the

automobiles on the lot. Lynch, armed with the

shotgun, was standing watch by the door. Moses

handed lynch a pair of scissors and Lynch stabbed

Robbs three or four times in the chest, over the heart.

Ruff then took the scissors[ ] and instructed Lynch to

return to the door to stand watch, while Ruff

repeatedly stabbed Robbs. Robbs was able to free

a hand and attempted to intercede the oncoming

stabs. Ruff then tied a rope around Robbs’ neck,

causing him to los consciousness. Ruff, Lynch,

Moses and Bridges left the shop on foot. All four met

at Hendricks’ apartment, changed clothes, and split

the money.4

[CR Doc. 110 at 5-6 (emphasis added)]. Based thereon, the Court found

that there was a factual basis for Petitioner’s guilty plea, accepted the plea,

4 Co-Defendants Lynch and Moses were also charged with and pleaded guilty to the same

counts as Petitioner, including violation of 18 U.S.C. §§ 924(c) and 2.

and entered a verdict of guilty thereon.5 [CR Doc. 131 at 4].

The factual basis in Petitioner’s case was plainly sufficient to support

Petitioner’s conviction under 18 U.S.C. §§ 924(c), 2.6 See United States v.

Blackman, 746 F.3d 137, 141 (4th Cir. 2014) (holding prosecution’s evidence

was “plainly sufficient” to support defendant’s conviction for brandishing a

firearm during and in relation to a crime of violence in violation of § 924(c)

where the defendant’s co-conspirators testified that he was privy to pre-

robbery discussions that included explicit references to the use of a firearm,

and that a firearm was brandished in the course of each robbery, despite

defendant not being present for each robbery); United States v. Saunders,

277 Fed. App’x 264, 266 (4th Cir. 2008) (unpublished decision) (holding that

conviction for possession of a firearm in furtherance of a drug trafficking

crime was supported by evidence of co-conspirator’s possession of firearm);

United States v. Fuller, 192 Fed. App’x 210, 211 (4th Cir. 2006) (holding that

evidence that defendant’s co-defendant had gun in his possession at time

he robbed bank, that co-defendant threatened to use gun, and that

defendant knew that co-defendant was taking gun into bank, was sufficient

5 None of Petitioner’s objections to the factual basis were relevant to the issue herein

before the Court. [See CR 131 at 6-7].

6 Petitioner’s arguments would appear to pertain more to the dismissed counts than to the

924(c) count of conviction. [CR Doc. 45 at 1; CR Doc. 68 at 1].

to support convictions of armed bank robbery and using, carrying, or

possessing a handgun in further of the bank robbery as aider and abettor).

As such, to the extent Petitioner intends to amend his petition to argue

that his counsel was ineffective in failing to object to the factual basis or to

argue the facts did not support a conviction under 18 U.S.C. §§ 924(c), 2, or

that Petitioner is, in fact, “factually innocent” of this crime, such amendment

is futile. The Court also notes that the one-year statute of limitations for

Petitioner’s Section 2255 claims has long since expired and, without the

gateway of actual innocence, Petitioner’s claim based on ineffective

assistance, to the extent he intends to make one, is barred. See Finch v.

McCoy, 914 F.3d 292, 294 (4th Cir. 2019)

As such, any amendment of Petitioner’s motion to vacate would be

futile and the Court, therefore, will deny Petitioner’s First Motion.

B. Second Motion

In his Second Motion, the Petitioner seeks to be resentenced and

requests an evidentiary hearing. He also advises the Court that he seeks $1

million for every day he is incarcerated beginning on June 24, 2019. As for

Plaintiff’s request to be resentenced, Petitioner’s Section 2255 Motion to

Vacate, Set Aside or Correct Sentence is already pending before the Court.

The Government has been ordered to respond by August 23, 2019, at which

time the Plaintiff’s motion to vacate will be ripe for adjudication. The Court

will decide at that time whether an evidentiary hearing is necessary.

As for the monetary relief sought by the Petitioner, such relief is not

available in Section 2255 proceedings. See 28 U.S.C. § 2255 (“If the Court

finds that the judgment was rendered without jurisdiction, or that the

sentence was imposed was not authorized by law or otherwise open to

collateral attack, or that there has been such a denial or infringement of the

constitutional rights of the prisoner as to render the judgment vulnerable to

collateral attack, the court shall vacate and set the judgment aside and shall

discharge the prisoner or resentence him or grant a new trial or correct the

sentence as may appear appropriate.”).

For these reasons, the Petitioner’s Second Motion will be denied.

C. Third Motion

To the extent Petitioner’s Third Motion was intended as a motion to

reconsider the Court’s June 25, 2019 Order setting the Government’s

response deadline for August 23, 2019, the Court denies that motion. Based

on the large number of cases impacted by the Supreme Court’s

consideration of Davis, the Government cannot address all of them

immediately. This case, along with the others, was stayed pending the

decision in Davis. Petitioner did not object to that stay. He cannot

reasonably object to the Government having a reasonable time to respond

regarding the effect of Davis. This is particularly true considering that Davis

is not only the new case impacting the questions herein. The recent

decisions in United States v. Dinkins, --- F.3d --- (4th Cir. July 1, 2019), and

Stokeling v. United States, 139 S. Ct. 544 (2019), may well impact the validity

of Petitioner's § 924(c) conviction.

It appears that the remainder of Petitioner's Third Motion is duplicative

of Petitioner's Second Motion and is denied as duplicative.

ORDER

IT IS, THEREFORE, ORDERED that Petitioners Motion for

Resentencing [CV Doc. 22], Petitioner's Motion for Resentencing [CV Doc.

23], and Petitioners Motion of Rebuttal for Time Extension for the

Government [CV Doc. 24] are DENIED.

The Clerk is respectfully instructed to send Petitioner a copy of the

current docket sheet in this matter.

IT IS SO ORDERED.

Signed: August 13, 2019

2 Reidinger ie Re

United States District Judge Aas

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