Diggs v. United States

“US, DISTRICT □□□□□

8, INSTRICT COURT

NORTHERN DISTRICT OF TEXAS

PILED

IN THE UNITED STATES DISTRICT COURT MAY 900

NORTHERN DISTRICT OF TEXAS MAP 29 cll20

FORT WORTH DIVISION CLERK, U8. DISTRICT COURT

BYensennesnyoennn

Pannen TY

CEDRICK DIGGS, §

§

Movant,

§

VS. § NO. 4:20-CV-163-A

‘ § {NO, 4:01-CR-177-A)

UNITED STATES OF AMERICA, §

§

Respondent. §

MEMORANDUM OPINION AND ORDER

Came on for consideration the motion of Cedrick Diggs,

movant, to vacate, set aside, or correct sentence pursuant to 28

U.S.C. § 2255. This is a second or successive such motion, but

the Fifth Circuit authorized its filing with the caveat that the

motion must be dismissed if movant failed to satisfy the

requirements for filing it. See 28 U.S.C. § 2244(b)} (4); Reyes-

Requena v. United States, 243 F.3d 893 (5'* Cir. 2001).* The

court, having considered the motion, the response of United

States,? the reply, the record, and applicable authorities, finds

that the motion should be dismissed.

As explained in the court's January 28, 2020 order, in order to be entitled to file a second or successive motion

under § 2255, movant must demonstrate either: (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 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. Reyes-Requena y. United

States, 243 F.3d 893, 900 (5" Cir, 2001),

* The response is in the form of a motion ta dismiss.

I.

Background

The record in the underlying criminal case reflects the

following:

On October 17, 2001, movant was named along with others in

a twenty-seven count indictment. CR Doc.*? 75. Movant was charged

in Count Six as follows:

On or about October 6, 1999, in the Fort Worth

Division of the Northern District of Texas, Telasa

Clark and Cedric Diggs, defendants, aided and abetted

by each other and others, did knowingly and willfully

obstruct, delay, and affect interstate commerce and

did attempt and conspire to obstruct, delay and affect

interstate commerce, by robbery, to-wit: the

defendants did take and obtain property, namely United

States Currency, from the person and in the presence

of Timothy Little, an employee of Kroger Grocery

Store, 6080 South Hulen, Fort Worth, Texas, against

his will by means of actual and threatened force,

violence, and fear of injury to his person.

A violation of Title 18, United States Code,

Section 195i(a) and {b) and 2.

Id. at 4. Count Hight contained a similar charge against movant

for a robbery that occurred on or about October 26, 1999. Id.

Count Ten contained a similar charge against movant for a

robbery that occurred on or ahout November 5, 1999. Id. at 5.

Count Twelve contained a similar charge against movant for a

robbery of ACE Cash Express that occurred on or about November

"CR Doc, _" reference is to the number of the item on the docket in the underlying criminal case, No, 4:01-

CR-177-A,

12, 1999, Id. at 6. Count Fourteen contained a similar charge

against movant for a robbery of Sack N Save Warehouse Food

Stores that occurred on or about November 12, 1999. Id. at 7.

Count Twenty-Six contained a similar charge against movant for a

robbery on or about April 18, 2000. Id. at 11.

Movant was charged in Count Seven as follows:

On or about October 6, 1999, in the Fort Worth

Division of the Northern District of Texas, defendants

Telasa Clark and Cedric Diggs, aided and abetted by

each other and others, did knowingly use and carry a

firearm during and in relation to the commission of a

crime of violence, namely: a robbery, which

obstructed, delayed, and affected commerce, a

violation of Title 18, United States Code, Section

1951, as alleged in Count 6 of this indictment, for

which the defendants may be prosecuted in a court of

the United States.

In violation of Title 18, United States Code,

Section 924(c}) (1} (A) (i) and 2.

CR Doc. 75 at 4. Count Nine contained a similar charge against

movant with regard to the robbery described in Count 8. Id. at

5. Count Eleven contained a similar charge against movant with

regard to the robbery described in Count 10, Id. at 5-6. Count

Thirteen contained a similar charge against movant with regard

to the robbery described in Count 12, Id. at 6. Count Fifteen

contained a similar charge against movant with regard to the

robbery described in Count 14. Id. at 7. Count Twenty-Seven

contained a similar charge against movant with regard to the

robbery described in Count 26. Id. at 11.

Some of the counts were dismissed and the remaining counts

were tried by a jury. In giving the instructions with regard to

the counts at issue, the court stated:

Okay. Now I'm going to talk about the counts of

the indictment that have to do with robbery affecting

commerce. Counts 10, 14, and 26 of the indictment

charge [movant] with robbery affecting commerce. ...

Title 28, United States Code, Section 1951 (a),

makes it a crime for anyone to obstruct commerce by

robbery. Robbery means the unlawful taking or

obtaining of personal property from the person or in

the presence of another, against his or her will, by

means of actual or threatened force, or violence, or

fear of injury, immediate or future, to his or her

person or property, or property in his or her custody

or possession, or the person or property of a relative

or member of his or her family or of anyone in his or

her company at the time of the taking or obtainment.

Now, for you to find the defendants guilty of

this crime, you must be convinced that the government

has proved each of the following beyond a reasonable

doubt as to the count under consideration, In other

words, this proof has to be made separately as to each

of those counts for a finding of guilty as to that

count to be made. And, again, I'm going to tell you,

one, two, three, first, second, third, what that proof

has to be.

First, that the defendant under consideration,

either Lott or [movant], obtained or attempted to

obtain money from another person without that person's

consent, that is, that other person's consent.

Second, that the defendant under consideration

did so by wrongful use of actual or threatened force,

violence, or fear.

And, third, that such conduct of the defendant

under consideration interfered with or affected

interstate commerce.

The use of actual or threatened force, violence,

or fear is "wrongful" if its purpose is to cause the

victim to give property to someone who has no

legitimate claim to the property.

Okay. The next series of explanations I'll give

you have to do with the counts that allege, in some

instances that Defendant Lott, and in other instances

that [movant], violated a criminal statute that

prohibits the use and carrying of a firearm in

connection with a crime of violence.

Now, in each of these instances the count that

has to do with a firearm immediately follows a count

in the indictment that has to do with a robbery, and

in each instance the firearm count grows out of the

robbery count that immediately precedes it. And you'll

have the indictment in there so you can see the

isequence]. There will be a robbery count and them

immediately after that there will be a count charging

violation of the firearm's law. And that would be the

pattern throughout. So in answering the parts of the

verdict form that have to do with the firearm count,

you can know that each time you answer one of those,

the firearm count has to do with the robbery that

immediately preceded it, the robbery count that

immediately preceded it.

. . . Counts 11, 15, and 27 of the indictment

charge [movant] with the using and carrying a firearm

in connection with a crime of violence.

Title 28, United States Code, Section 924{c} (1},

makes it a crime for anyone to use and carry a firearm

during and in relation to a crime of violence. And

you're instructed that bank robbery and robbery are

crimes of violence.

Now, that is what I told you a minute ago. Each

one of these when --when there's a firearm count, it

depends on you having found the defendant guilty of

the offense of having committed the robbery in the

first place, that is, the immediately preceding count.

And if you found the defendant guilty of

committing the robbery, then the next thing you do is

deal with the count that follows that that has to do

with the firearm. And in order to convict him of that

firearm count, you have to find that he committed that

crime charged by the immediately preceding count of

the indictment, and that he used and carried a firearm

during an in relation to the commission of that crime.

CR Doc, 323 at 634-40.

On December 6, 2001, the jury returned its verdict, finding

movant guilty as to counts 10, 11, 14, 15, 26, and 27 of the

indictment. CR Doc. 227. By judgment signed March 28, 2002,

movant was sentenced to terms of imprisonment of 78 months on

each of counts 10, 14, and 26, to run concurrently, a term of

imprisonment of 60 months on count 11 to run consecutively, and

terms of 300 months on each of counts 15 and 27 to run

consecutively, for a total sentence of 738 months. CR Doc. 293.

Movant appealed, CR Doc. 283, and his sentence was affirmed.

United States v. Lott, 66 F. App'x 523 (5 Cir, 2003}. His

petition for writ of certiorari was denied. Diggs v. United

States, 538 U.S. 1068 (2003).

il.

Grounds of the Motion

Movant alleges that his convictions and sentences on Counts

11, 15, and 17 [sic] were imposed in violation of the

Constitution, the sentences were in excess of the maximum

authorized by law, and the convictions and sentences were

otherwise subject to collateral attack. Specifically, he

contends that his § 924{c) convictions are invalid because they

are based on convictions for conspiracy to commit Hobbs Act

robbery, which is no longer characterized as a crime of

violence.

IIL.

Standard for Maintaining a Successive Motion

Before movant can proceed with his motion, he must

"actually prove . ,. that the relief he seeks relies either on a

new, retroactive rule of constitutional law or on new evidence."

United States v. Wiese, 896 F.3d 720, 723 (5™ Cix. 2018). To

prove that his successive motion relies on the rule established

in United States v. Davis, 129 S. Ck. 2319 (2019), movant must

show that it was "more likely than not" that he was sentenced

under the residual clause. That is, he must show that the

offenses underlying his § 924(c) convictions were categorized as

crimes of violence only through reliance on the now-defunct

residual clause. United States v. Clay, 921 #.3d 550, 554, 559

(5 Cir. 2019). In making this analysis, the court looks to the

sentencing record for direct evidence of reliance or non-

reliance on the residual clause, and the relevant background

legal environment that existed at the time of movant's

sentencing and the presentence report and other relevant

materials before the court. Wiese, 896 F.3d at 724-25.

IV.

Analysis

Here, movant says that his § 924(c) convictions were

predicated on conspiracy to commit Hobbs Act robbery, which,

after Davis, no longer qualifies as a crime of violence. He

points to the listing in the judgment, which refers to the

"nature of offense" as "conspiracy to obstruct interstate

commerce by robbery and aiding and abetting." CR Doc. 293. The

Pifth Circuit likewise picked up on this erroneous description

in reciting that movant had been convicted of "three counts of

conspiracy to obstruct interstate commerce by robbery." 66 F.

App'x at 523.

Looking at the sentencing record, it is clear that the

description used in the judgment was not correct. The indictment

itself was duplicitous, charging more than one offense in the

Hobbs Act counts. United States v. Miller, 520 F.3d 505, 512 {5%

Cir. 2008). Movant failed to challenge the duplicity and thus

waived any complaint. United States v. Baytank (Houston), Inc.,

934 F.2d 599, 609 (5° Cir, 1991). Any harm was cured when the

government requested the court to charge the jury as to robbery.

See Reno v. United States, 317 F.2d 499, 502 (5 Cir. 1963). As

recited, supra, the court' charge clearly required the jury to

find that movant committed the robberies described in counts 10,

14, and 26. Further, both the indictment and the court's charge

required the jury to find that movant had used and carried a

firearm in relation to “the commission of a crime of violence,

namely: a robbery, which obstructed, delayed, and affected

commerce, a violation of Title 18, United States Code, Section

1951, as alleged" in the indictment.

The court's charge as to conspiracy applied only to Count

One of the indictment against movant's co-defendant, Lott. CR

Doc. 323 at 628-31. Lott was charged in CounEk One with

conspiracy to commit bank robbery. CR Doc. 75 at 1-2. The jury.

was not charged as to conspiracy to commit Hobbs Act robbery.

Nor was there any reference to conspiracy with regard to the

Charge as it pertained to movant. There can have been no

confusion by the jury on this issue. Jurors are presumed to

follow the instructions given by the court. United States v.

Burns, 526 F.3d 852, 858 (5'* Cir. 2008). Those instructions

required the jury to find movant guilty of robbery in order to

convict him of the § 924(c) charges.

Finally, even if one could speculate that the jury might

have found movant guilty of conspiracy to commit Hobbs Act

robbery, such a showing would not meet movant's burden to pursue

a successive motion under § 2255. See United States v.

Hernandez, 779 F. App'x 195, 199-200 (5™ Cir. 2019). He can only

speculate as to what the jury found. He cannot show it was more

likely than not that his 924{(c) convictions were premised on a

residual-clause offense.

The argument in movant's reply, that the verdict was a

general one that must now be set aside because "the Constitution

forbids conviction on a particular ground," is not apropos. This

is not a case like any of those cited where a verdict was

required to -be set aside when one of the underlying grounds was

declared unconstitutional and is was impossible to say under

which clause of the statute the conviction was obtained. See

Stromberg v. California, 283 U.S. 359 (1931). Further, the

argument that Fifth Circuit precedent required that where a jury

verdict is ambiguous, a sentence imposed for a conviction on a

count charging violations of multiple statutes or provisions of

statutes must be deemed a conviction for the crime with the

lowest of the potentially applicable maximums actually favors

the government. See United States v. Conley, 349 F.3d 837, 840

(5™ cir. 2003). If, as movant now argues, he could have been

convicted of conspiracy or Hobbs Act robbery, his maximum

sentence would have been five years on each of Counts 10, 14,

and 26. He was sentenced to 78 months on each of those

convictions and never raised the issue. The argument that he was

convicted of conspiracy has long been waived.

As for the argument that the courts have often referred to

conspiracy in describing the charges, the court notes that the

Fifth Circuit also referred to "the time period in which

10

[movant] was committing the robberies" and his "motive to commit

the bank robberies." United States v. Lott, 66 F. App'x at *1.

Loose language is not unusual in opinions.

Vv.

Order

The court ORDERS that movant's motion be, and is hereby,

dismissed.

Vi

SIGNED May 29, 2020. Lo ff /

a ey a oe AI

/ Sb

My

N McBRYDE

United States Distry¥ct Judge

11