BURNETT v. United States

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

TREMONE BURNETT, Civil Action No. 20-7569 (KSH)

Petitioner,

v. OPINION

UNITED STATES OF AMERICA,

Respondent.

This matter has been opened to the Court by Tremone Burnett’s amended motion to vacate

his conviction and sentence pursuant 28 U.S.C. § 2255. For the reasons below, the Court denies

the amended motion and also denies a certificate of appealability.

I. FACTUAL BACKGROUND & PROCEDURAL HISTORY

On August 20, 2014, Burnett was charged by complaint with seven counts of substantive

Hobbs Act robbery. (Crim. No. 16-66, D.E. 1). He was indicted on February 17, 2016 in connection

with 14 separate hotel robberies. (Id. at D.E. 20.) The Indictment charged Burnett with the

following seven Counts:

Count Charge Statute Conduct

1 Conspiracy to Commit 18 U.S.C. § 1951(a) Burnett’s robbery of all 14 hotels.

Robbery

2 Robbery 18 U.S.C. § 1951(a) Burnett’s May 9, 2014

robbery of a hotel in Rockaway,

New Jersey.

3 Use of a firearm 18 U.S.C. § Predicate is the robbery charged in

during a crime of 924(c)(1)(A)(ii) Count 2.

violence

4 Robbery 18 U.S.C. § 1951(a) Burnett’s May 31, 2014 robbery of

a hotel in

Weehawken, New Jersey.

5 Discharge of a firearm 18 U.S.C. § Predicate is the robbery charged in

during a crime of 924(c)(1)(A)(iii) Count 4.

violence

6 Robbery 18 U.S.C. § 1951(a) Burnett’s June 15, 2014

robbery of a hotel located in

Newark, New Jersey.

7 Use of a firearm during a 18 U.S.C. § Predicate is the robbery charged in

crime of violence 924(c)(1)(A)(ii) Count 6.

(See id.)

On July 25, 2018, Burnett and the government signed a plea agreement pursuant to Rule

11(c)(1)(C) in which Burnett would plead guilty to Counts 1 and 5 of the Indictment. The plea

agreement required Burnett to admit to conspiring and agreeing with others to rob the 14 hotels

and “admit[] under oath at the time of his guilty plea to committing” all 14 armed robberies. (Crim.

No. 16-66, D.E. 40 at 2 (Plea Agreement); see also id. at 10-12 (Schedule A to Plea Agreement).)

In exchange for Burnett’s guilty plea and a stipulated sentence of 252 months and five years of

supervised release, the government agreed to dismiss the remaining counts of the Indictment and

not initiate further charges. (Id. at 1-2.)

At his plea hearing on September 12, 2018, Burnett admitted that from April 2014 through

June 2014, he conspired and agreed with others to commit armed robberies in and around New

Jersey and New York. (D.E. 62 at 23:16-24 (Plea Transcript).) Burnett then admitted that he

committed each of the 14 armed robberies by responding affirmatively to questions posed by the

Court. (See id. at 23:25-28:20.)

At the plea hearing, the government clearly explained that the essential elements of Count

5 were premised on the completed Hobbs Act robbery charged in Count Four:

The elements of count five, Your Honor, which is a violation of 18

United States Code, Section 924(c)(1)(A)(3) are as follows: The

defendant committed the Hobbs Act robbery charged in count four

of the indictment and the defendant knowingly used and discharged

a firearm during and in relation to that crime.”

(Id. at 20:24-21:4.)

Burnett also admitted the facts underlying Count 5 by responding affirmatively to questions

posed by the Court:

THE COURT: On or about May 31, 2014, did you enter and rob a

Sheraton hotel located in or around Weehawken, New Jersey.

THE DEFENDANT: Yes.

THE COURT: During the course of that robbery, did you possess

and discharge a firearm?

THE DEFENDANT: Yes.

(Id. at 25:18-21.)

Toward the end the hearing, the government represented as a further factual basis that if

the case had gone to trial, “it would have proven beyond a reasonable doubt that the defendant

discharged his firearm during the robbery of a Sheraton Hotel located in or around Weehawken,

New Jersey on May 31, 2014.” (Id. at 29:14-17.)

On December 18, 2018, the Court sentenced Burnett to 252 months imprisonment and five

years of supervised release, the stipulated terms set out in the plea agreement. (Crim. No. 16-66,

D.E. 45.) The violation of 18 U.S.C. § 1951(a) charged in Count 1, the Hobbs Act conspiracy

count, carried a statutory maximum prison sentence of 240 months imprisonment. Count 5, the §

924(c) count, carried a mandatory term of 120 months imprisonment. See 18 U.S.C. §

924(c)(1)(A)(iii). The term for Count 5 must run consecutive to Count 1. See 18 U.S.C. §

924(c)(1)(D)(ii).

On June 11, 2020, Burnett filed a pro se motion under 28 U.S.C. § 2255, and he filed an

amended motion on July 3, 2020. (Civ. No. 20-7569, D.E. 1, 3.) Burnett asserted in ground I of

the motion that his conviction under Count 5 of the Indictment, charging him with violating 18

U.S.C. § 924(c)(1)(a)(iii), is void in light of United States v. Davis, 139 S. Ct. 2319 (2019). (D.E.

3 at 4.) In ground II, Burnett alleged that counsel was ineffective when he failed to inform

Petitioner that the term “United States” in 18 U.S.C. § 5 is exclusively used in a territorial sense.

(Id. at 5.) In ground III, Burnett alleged that he was denied due process by a court having competent

subject matter jurisdiction. (Id. at 7.) In ground IV, Burnett alleged that his rights under Article I

Section 8 Clauses 10 & 17 and Article IV Section 3 Clause 2 of the United States Constitution

were violated. (Id. at 8.)

Burnett filed his motion beyond the one-year limitations period set forth in 28 U.S.C. §

2255(f)(1), which calculates the limitations period from the date on which a petitioner’s conviction

becomes final after direct appeal or the time to appeal expires. Burnett submitted his motion within

a year of the Supreme Court’s decision in Davis and relied on Davis as a new rule of constitutional

law under § 2255(f)(3).

On July 29, 2020, the Court issued an Order directing Burnett to show cause why grounds

II, III, and IV of the motion should not be dismissed as untimely. (Civ. No. 20-7569, D.E. 4.) In a

letter dated November 16, 2020, Burnett responded to the Court’s Order, and sought to voluntarily

dismiss all claims except ground I. (See id. at D.E. 5.) On December 6, 2020, the Court dismissed

without prejudice grounds II, III, and IV, and directed the government to answer ground I. (Id. at

D.E. 6.)

The government filed its answer on June 10, 2021. (Id. at D.E. 11.) On October 4, 2021,

Burnett filed a reply brief. (Id. at D.E. 14.)

On December 1, 2023, Burnett filed supplemental papers arguing that he is also entitled to

relief under United States v. Taylor, 142 S. Ct. 2015 (2022). The government did not respond, and

the Clerk’s Office has docketed Burnett’s supplement as a motion (D.E. 18), which the Court

directs be terminated. Instead, in this opinion the Court considers Burnett’s arguments that he is

also entitled to relief under Taylor.

II. STANDARD OF REVIEW

Under § 2255, a federal prisoner may move to vacate, set aside, or correct his federal

sentence if: (1) “the sentence was imposed in violation of the Constitution or laws of the United

States”; (2) the court lacked “jurisdiction to impose” the sentence; (3) the sentence exceeded “the

maximum authorized by law”; or (4) the sentence is “otherwise subject to collateral attack[.]” 28

U.S.C. § 2255(a). “The statute’s language ‘is somewhat lacking in precision’ but ‘afford[s] federal

prisoners a remedy identical in scope to federal habeas corpus [under 28 U.S.C. § 2254].’” United

States v. Folk, 954 F.3d 597, 601 (3d Cir. 2020) (quoting Davis v. United States, 417 U.S. 333,

343 (1974)). “The scope of relief does not reach ‘every asserted error of law.’” Id. (quoting Davis,

417 U.S. at 346). Instead, § 2255 provides relief for jurisdictional and constitutional claims, as

well as limited types of nonconstitutional claims, such as sentencing errors that violate fair

procedure or amount to a miscarriage of justice. See id. (citations omitted). A criminal defendant

bears the burden of establishing his entitlement to § 2255 relief. See United States v. Davies, 394

F.3d 182, 189 (3d Cir. 2005); United States v. Bentley, 49 F.4th 275, 283 (3d Cir. 2022). Moreover,

as a § 2255 motion to vacate is a collateral attack on a sentence, a criminal defendant “must clear

a significantly higher hurdle than would exist on direct appeal.” United States v. Travillion, 759

F.3d 281, 288 (3d Cir. 2014) (citing United States v. Frady, 456 U.S. 152, 166 (1982)).

As a “general rule . . . claims not raised on direct appeal may not be raised on collateral

review unless the petitioner shows cause and prejudice.” Massaro v. United States, 538 U.S. 500,

504 (2003) (citing Frady, 456 U.S. at 167-68); Bousley v. United States, 523 U.S. 614, 621-22

(1998)). “In the habeas context, [courts] allow a party to overcome their ‘procedural default’ if it

can show either cause and prejudice or actual innocence.” United States v. De Castro, 49 F.4th

836, 847 (3d Cir. 2022).

III. DISCUSSION

a. Burnett’s § 924(c) Conviction is Still Valid

Burnett argues that his § 924(c) conviction must be overturned because he was convicted

of Hobbs Act conspiracy in Count 1, which no longer qualifies as a crime of violence after Davis,

139 S. Ct. at 2336 (holding that the residual clause in 18 U.S.C. § 924(c)’s definition of “crime of

violence” is void for vagueness).1 In his supplemental filing, Burnett further argues that his §

924(c) conviction must be overturned based on Taylor, 142 S. Ct. at 2020 (holding that attempted

Hobbs Act robbery does not satisfy the elements clause).

Section 924(c) punishes “any person who, during and in relation to any crime of violence

. . . , uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm.” 18

1 On June 26, 2015, the Supreme Court held that the residual clause of the Armed Career Criminal

Act (“ACCA”) was unconstitutionally vague. Johnson v. United States, 576 U.S. 591 (2015).

Johnson announced a new rule of constitutional law made retroactive to cases on collateral review.

See Welch v. United States, 578 U.S. 120 (2016). On April 17, 2018, the Supreme Court held that

a similarly-worded provision of 18 U.S.C. § 16(b) was also unconstitutionally vague. See Sessions

v. Dimaya, 138 S. Ct. 1204, 1223 (2018). On June 24, 2019, the Supreme Court held in Davis that

the residual clause in 18 U.S.C. § 924(c)’s definition of “crime of violence” was also void for

vagueness. See Davis, 139 S. Ct. at 2336.

The government argues that Burnett’s claim is procedurally defaulted and barred from review

absent a showing of cause and prejudice or actual innocence. See United States v. Jenkins, 333

F.3d 151, 155 (3d Cir. 2003). The Court assumes that Burnett can establish cause to overcome the

procedural default of his Davis claim. Courts in this circuit have determined that “it is at least

plausible that the same rationale that supported the novelty exception for Johnson motions would

support its application to Davis motions.” United States v. Scott, 521 F. Supp. 3d 538, 545 (M.D.

Pa.) (citing cases), appeal filed, No. 21-1539 (3d Cir. Mar. 22, 2021). Thus, it stands to reason that

Burnett has established cause for failing to raise a vagueness challenge to Section 924(c)’s residual

clause on direct review, because the state of the law at the time of his conviction, after Johnson

and Dimaya but prior to Davis, did not offer a reasonable basis upon which to challenge the guilty

plea. See Reed v. Ross, 468 U.S. 1, 17 (1984). At issue is whether Burnett can establish prejudice.

U.S.C. § 924(c)(1)(A). Under § 924(c), a crime of violence is defined as “an offense that is a

felony” and

(A) has as an element the use, attempted use, or threatened

use of physical force against the person or property of another, or

(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.

Id. § 924(c)(3)(A)–(B). Courts refer to § 924(c)(3)(A) as the “elements clause” and § 924(c)(3)(B)

as the “residual clause.” After Davis, to qualify as a crime of violence, a predicate crime must

satisfy the “elements clause” of § 924(c). Under that clause, a predicate must have “as an element

the use, attempted use, or threatened use of physical force against the person or property of

another.” 18 U.S.C. § 924(c)(3)(A). That inquiry asks whether the government must always

“prove—beyond a reasonable doubt, as an element of its case—the use, attempted use, or

threatened use of force.” Taylor, 142 S. Ct. at 2020. In conducting this analysis, courts use the

categorical approach and “look only to the statutory definitions’—i.e., the elements—of a

defendant’s offense, and not to the particular facts underlying [the offense].” Descamps v. United

States, 570 U.S. 254, 261 (2013) (cleaned up).

To the extent Burnett argues that the predicate offense for his the § 924(c) offense is the

Hobbs Act conspiracy in Count 1 of the Indictment, he is mistaken. The predicate offense for

Burnett’s § 924(c) conviction is Count 4 of the Indictment, a completed Hobbs Act robbery.

Contrary to Burnett’s arguments, Taylor does not hold that a completed Hobbs Act robbery is not

a crime of violence under the elements clause. Indeed, in United States v. Stoney, 62 F.4th 108,

113-114 (3d Cir. 2023), decided on March 10, 2023, the Third Circuit held that Taylor “[did] not

change our [pre-Taylor] position” that “completed Hobbs Act robbery is categorically a crime of

violence under § 924(c)(3)(A).” See id. at 113-14; see also United States v. Stevens, 70 F.4th 653,

662 (3d Cir. 2023) (holding, as a matter of first impression, that “aiding and abetting a completed

Hobbs Act robbery qualifies as a crime violence under § 924(c)”). Therefore, under current Third

Circuit precedent, a completed Hobbs Act robbery is still a valid predicate for a § 924(c)

conviction.

Burnett also appears to object to the fact that his § 924(c) conviction is predicated on a

dismissed count of the Indictment. In the Third Circuit, “it is well settled that, ‘in a prosecution

under [§ 924(c)], the Government must prove that the defendant committed a qualifying predicate

offense . . . but it is not necessary that the defendant be separately charged with or convicted of

such an offense.’” United States v. Collazo, 856 F. App’x 380, 383 (3d Cir. 2021) (cleaned up)

(quoting United States v. Lake, 150 F.3d 269, 274-75 (3d Cir. 1998)). Indeed, a conviction under

§ 924(c) only requires “legally sufficient proof that the predicate crime of violence . . . was

committed.” Johnson v. United States, 779 F.3d 125, 130 (2d Cir. 2015). Courts looks to “the

actual proffer, plea hearing, and other evidence in the record to determine if a qualifying predicate

offense was committed.” Collazo, 856 F. App’x. at 383 (explaining that “[t]he government has

demonstrated, through the indictment, plea agreement, and plea colloquy, that Collazo committed

Hobbs Act robbery”). Thus, as the government contends, Burnett’s § 924(c) conviction remains

valid so long as there is legally sufficient proof that he committed a Hobbs Act robbery.

Here, the Indictment, the plea agreement, and Burnett’s plea colloquy demonstrate that he

committed a completed Hobbs Act robbery on May 31, 2014 by robbing the Sheraton Hotel in or

around Weehawken, New Jersey and discharging a firearm during that robbery. Those same

documents also demonstrate that the completed Hobbs Act robbery charged in Count 4 is the

predicate for Burnett’s § 924(c) conviction in Count 5.

In sum, because a completed Hobbs Act robbery is still a valid predicate under § 924(c)’s

elements clause and the completed Hobbs Act robbery in Count 4 is the predicate for Burnett’s

conviction under § 924(c) in Count 5, his § 924(c) conviction remains valid. The Court denies

relief on this claim.

b. Burnett does not Meet the Standard for a Certificate of Appealability

The Court also denies a certificate of appealability (“COA”). A petitioner may not appeal

a final order in a § 2255 proceeding unless a circuit or district judge issues a certificate of

appealability. 28 U.S.C. § 2253(c)(1). The Court may issue a certificate of appealability “only if

the applicant has made a substantial showing of the denial of a constitutional right.” 28. U.S.C. §

2253(c)(2). “That standard is met when ‘reasonable jurists could debate whether (or, for that

matter, agree that) the petition should have been resolved in a different manner.’” Welch, 578 U.S.

at 127 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). In the Third Circuit, “[t]his showing

‘is satisfied even if the claim is only debatably constitutional.’” Clark v. United States, 76 F.4th

206, 212 (3d Cir. 2023) (quoting United States v. Doe, 810 F.3d 132, 145 (3d Cir. 2015)). Here,

reasonable jurists would not find it debatable that Burnett’s § 924(c) conviction violates his

constitutional rights, and the Court denies a certificate of appealability.

IV. CONCLUSION

For the reasons stated in this Opinion, the Court denies Burnett’s amended motion and

denies a certificate of appealability. An appropriate Order follows.

s/Katharine S. Hayden_______

KATHARINE S. HAYDEN

United States District Judge

DATED: May 16, 2024.