The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
KOFIE AKIEM JONES,
Petitioner,
v. Civil Action No. 1:16CV100
(Criminal Action No. 1:03CR47-01)
UNITED STATES OF AMERICA, (STAMP)
Respondent.
MEMORANDUM OPINION AND ORDER
DENYING PETITIONER’S MOTION TO AMEND AS UNTIMELY,
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE,
OVERRULING PETITIONER’S OBJECTIONS AND
DISMISSING CIVIL ACTION WITH PREJUDICE
I. Background
Following a jury trial, the pro se1 petitioner, Kofie Akiem
Jones, was convicted of (1) conspiracy to rob banks and interfere
with commerce by threats and violence, (2) attempted bank robbery,
(3) armed bank robbery, (4) possession of a firearm in furtherance
of a crime of violence, (5) interference with commerce by threats
and violence, and (6) possession of a firearm in furtherance of a
crime of violence. ECF No. 19 at 4/ECF No. 437 at 1.2 The
1“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer. Black’s Law
Dictionary 1416 (10th ed. 2014).
2The first ECF number refers to the civil docket in which the
current petition is pending (Civil Action No. 1:16CV100). The
second ECF number refers to the criminal docket of the petitioner’s
original criminal action (Criminal Action No. 1:03CR47).
petitioner was sentenced to 535-months imprisonment followed by
five years of supervised release. Id.
Now pending before the Court is the petitioner’s motion to
vacate, set aside or correct sentence by a person in federal
custody pursuant to 28 U.S.C. § 2255. ECF Nos. 1 and 12. In his
motion, the petitioner asserts that “Johnson supra, retroactively
vindicates [him] of liability.” ECF No. 1 at 1/ECF No. 350 at 1.
He also requests assistance of counsel. Id.
The petitioner then received a notice of deficient pleading
and he later filed a motion under § 2255 on a court-approved form.
ECF Nos. 4 and 12/ECF Nos. 354 and 360.
In his motion, the petitioner claims he is entitled to relief
on seven grounds. Id. First, the petitioner asserts that his due
process rights under the Fifth Amendment of the United States
Constitution were violated because he “was subjected under Count
One to, 18 U.S.C. 371, which has been abrogated by Johnson3 supra
due to unconstitutionally vague language” (Ground One). ECF No. 12
at 5/ECF No. 360 at 5. Second, the petitioner states that his due
process rights were violated when he “was charged with attempted
bank robbery, which language has since been abrogated in light of
Johnson, supra” (Ground Two). Id. at 6. Third, the petitioner
asserts that his due process rights were violated because he “was
charged with armed bank robbery (18 U.S.C. 2113) which language has
3Johnson v. United States, 135 S. Ct. 2551 (2015).
2
since been abrogated by the Johnson, supra decision” (Ground
Three). Id. at 8. Fourth, the petitioner contends that his due
process rights were violated because he “was charged in Count Four
for possession of a firearm in furtherance of a crime of violence,
18 U.S.C. 924(c) which language has since been abrogated by
Johnson, supra” (Ground Four). Id. at 10. Fifth, the petitioner
states that his due process rights were violated because he “was
charged with Hobbs Act robbery in violation of, 18 U.S.C. 1951
. . . in which language has been abrogated in light of Johnson,
supra” (Ground Five). Id. at 11. Sixth, the petitioner asserts
that his due process rights were violated because he “was charged
in Count Six with possessing a firearm in furtherance of a crime of
violence, 18 U.S.C. 924(c) . . . in which language has been
abrogated in light of Johnson, supra” (Ground Six). Id. Seventh,
the petitioner contends that his due process rights were violated,
stating that his “jury charge/instructions reflects the crime of
violence language abrogated in light of Johnson, supra” (Ground
Seven). Id.
The government then filed an answer to the petitioner’s
petition. ECF No. 14/ECF No. 376. The government first states
that the United States Court of Appeals for the Fourth Circuit has
decided that armed bank robbery is categorically a “crime of
violence” for a conviction under § 924(c), so the petitioner’s
challenge to the use of his armed bank robbery conviction in Count
3
Three as a predicate for his “crime of violence” conviction in
Count Four should be denied. Id. at 3-5. Specifically, the
government states that the petitioner was not sentenced under the
“residual clause” in the Armed Career Criminal Act (“ACCA”), the
residual clause of the Career Offender guideline, nor the residual
clause found in 18 U.S.C. § 924(e)(1)(B)(ii). Id. at 5. Rather,
the government states that the petitioner was sentenced under the
“force clause” found in 18 U.S.C. § 924(c)(3)(A), noting that the
Fourth Circuit has already ruled that Johnson is inapplicable to
the force clause of the armed bank robbery statute, and that armed
bank robbery is a crime of violence. Id. Moreover, the government
indicates that the petitioner has procedurally defaulted on that
claim since he failed to raise it in any appeal of his sentence.
Id. at 3, 5, 7-8. The government adds that every circuit has
decided that Hobbs Act robbery is categorically a crime of violence
for a conviction under § 924(c), and so the petitioner’s challenge
regarding his Hobbs Act robbery conviction in Count Five should be
denied. Id. at 3-4, 6. Specifically, the government states that
the petitioner was not sentenced in Count Six under the “residual
clause” in the ACCA, the residual clause of the Career Offender
guideline, nor the residual clause in 18 U.S.C. § 924(e)(1)(B)(ii).
Id. at 5-6. Lastly, the government notes that the petitioner has
procedurally defaulted on this claim as well for failing to raise
it in any appeal of his sentence. Id. at 7. Similarly, the
4
government contends that the petitioner failed to raise his void
for vagueness contention on his direct appeal of his resentencing,
and therefore the petitioner cannot establish cause and has
procedurally defaulted. Id. at 7-8.
The petitioner then filed what is titled as “Motion for Status
Update/Second Request to Hold Proceeding in Abeyance for Requisite
Time.” ECF No. 380.4 The petitioner attached a copy of a letter
from appointed counsel advising the petitioner that his office was
“obligated to notify the Court there is no firm legal basis to
support [his] claim. As such, no supplemental filings will be made
by [the] office.” ECF No. 380-1 at 1. Specifically, the
petitioner requests new counsel since his appointed counsel stated
that there is no firm legal basis to support the petitioner’s
claims. Id. at 2-3. The Clerk of Court then sent the docket sheet
to the petitioner. ECF No. 381.
The petitioner then filed what is titled as “Consolidated
Motion for Status Update/Motion of Notice of Change of Address.
Motion to Preserve the Rights for Equitable Tolling.” ECF
No. 16/ECF No. 396. In that motion, the petitioner states, “[o]n
or about December 15th, 2016, this petitioner wrote this Honorable
Court asking for [his] case to be held in abeyance under the
conditions of ineffective assistance of counsel by Brian Kornbrath,
4ECF No. 380 in Criminal Action No. 1:03CR47 is not docketed
in Civil Action No. 1:16CV100.
5
this petitioner also provided exhibits and a detailed outline of
the ineffectiveness concerning appointed counsel.” Id. at 2. The
petitioner further indicates that “[o]n or about December 19th,
2016, [he] was transferred to Lewisburg Special Management Unit[ ]
[sic] SMU where [he is] currently housed.” Id. Moreover, the
petitioner alleges that he “still has not received his personal
property and legal work since it was confiscated on August 5th,
2016.” Id. Lastly, the petitioner requests a “status update of
his filings.” Id.
The petitioner then filed what is titled as “Motion for Status
Update/Motion to Amend/Supplement in Support of Habeas § 2255
Petition.” ECF No. 451.5 In that motion, the petitioner requests
that this Court “supplement/amend” the following cases “into his
habeas § 2255 petition[:]” (1) United States v. Ali, 2019 U.S. App.
LEXIS 4140 (4th Cir. Feb. 11, 2019); (2) United States v. Simms,
914 F.3d 229 (4th Cir. Jan. 24, 2019); (3) Dimaya v. Lynch, 803
F.3d 1110, 1120 (9th Cir. 2015); (4) United States v. Strayhorn,
743 F.3d 917 (4th Cir. 2014); (5) United States v. Feliciano, 747
F.3d 1284 (11th Cir. 2014); (6) United States v. Lewis, 802 F.3d
449 (3rd Cir. 2015); and (7) United States v. Henry, 797 F.3d 371
(6th Cir. 2015). Id. at 1-2. The petitioner states that he should
be permitted “to supplement these appellant authorities into his
5ECF No. 451 in Criminal Action No. 1:03CR47 is not docketed
in Civil Action No. 1:16CV100.
6
pleadings pursuant to Fed. R. Civ. P. 15(c) because it relates back
and will not result in prejudice to the opposing party.” Id. at 3.
The petitioner has also filed what is titled as “Motion to
Amend and Supplement in Accordance with F. R. Civ. P. 15(c)(1)(B)
and F. R. Civ. P. 15(d).” ECF No. 452.6 In that motion, the
petitioner asserts that “after the Supreme Court’s decision in
Sessions v. Dimaya, 584 U.S. __ (2018) the residual clause of 18
USC § 924(c) is unconstitutionally [vague] [sic], and therefore
Hobbs Act robbery can not support an enhancement under § 924(c)
because Hobbs Act robbery ‘is’ common law robbery with an
interstate element, and 18 USC § 1951 is constructed in accordance
with the common law to cover uses of both [‘violent’] [sic] and
‘nonviolent’ force.” Id. at 4. Moreover, the petitioner cites
Descamps v. United States, 133 S. Ct. 2276 (2016), and states that
Descamps “teaches us that if a statute sweeps more broadly than the
generic offense, a conviction under that statute cannot be used as
a predicate for enhancement under § 924, even if the defendant
actually committed the offense in its generic form.” Id. at 9.
The petitioner also cites Descamps to support his contention that
“a conviction under 18 USC § 2113(a) is not a crime of violence
6In ECF No. 452, docketed under Criminal Action No. 1:03CR47,
the petitioner erroneously cites Criminal Action No. 1:03CR47 as
Criminal Action No. 1:02CR47. See ECF No. 452 at 1. ECF No. 452
is not docketed in Civil Action No. 1:16CV100.
7
under the proper application of the categorical approach.” Id.
at 11.
The government then filed a response to the petitioner’s
motion to amend and supplement in accordance with Federal Rule of
Civil Procedure 15(c)(1)(b) and Federal Rule of Civil Procedure
15(d). ECF No. 18/ECF No. 453. In its response, the government
states that it incorporates its response in the government’s answer
to the petitioner’s petition (ECF No. 14/ECF No. 376). Id. at 2.
The petitioner filed a reply to the government’s response to
the petitioner’s motion to amend and supplement in accordance with
Federal Rule of Civil Procedure 15(c)(1)(b) and Federal Rule of
Civil Procedure 15(d). ECF No. 454.7 In his reply, the petitioner
first contends that his “argument was aimed directly at 18 USC
Section 924(c)(3)(A), the so-called ‘force clause.’ This is
because this circuit, and several others have already ruled that
924(c)(3)(B) is unconstitutionally vague.” Id. at 1. Second, the
petitioner asserts “that the word ‘force’ in the Hobbs [A]ct covers
both ‘violent,’ and ‘nonviolent,’ uses of force, and that the Hobbs
Act was specifically written to cover any and all uses of force,
whether ‘violent,’ or ‘non-violent.’” Id. The petitioner then
asserts that the language of the Hobbs Act is broad and that the
words “force,” “violence,” and “putting in fear” must be given
7ECF No. 454 in Criminal Action No. 1:03CR47 is not docketed
in Civil Action No. 1:16CV100.
8
their broadest possible meaning.” Id. Lastly, citing Scheidler v.
NOW, 537 U.S. 393 (2003), the petitioner asserts that “any
ambiguity as to the meaning of the word ‘force’ under the Hobbs Act
must be decided in favor of the petitioner.” Id. at 2.
This action was referred to United States Magistrate Judge
Michael John Aloi for initial review and report and recommendation
pursuant to Local Rule of Prisoner Litigation Procedure 2 and 28
U.S.C. § 636(b)(1)(B). The magistrate judge filed a report and
recommendation recommending that the petitioner’s motion to vacate,
set aside, or correct sentence by a person in federal custody (ECF
Nos. 1 and 12/ECF Nos. 350 and 360) be denied and dismissed with
prejudice. ECF No. 19 at 23/ECF No. 460 at 23. Moreover, the
magistrate judge recommended that all of the following be denied as
moot: (1) the petitioner’s pending motion for status update/second
request to hold proceeding in abeyance for requisite time (ECF No.
380); (2) the petitioner’s consolidated motion for status update/
motion of notice of change of address/motion to preserve the rights
for equitable tolling (ECF No. 16/ECF No. 396); (3) the
petitioner’s motion for status update/motion to amend/supplement in
support of § 2255 motion (ECF No. 451); and (4) the petitioner’s
motion to amend and supplement in accordance with Federal Rule of
Civil Procedure 15(c)(1)(B) and Federal Rule of Civil Procedure
15(d) (ECF No. 452). Id. at 23-24.
9
The magistrate judge informed the petitioner that if he
objected to any portion of the report and recommendation, he was
required to file specific written objections within 14 days after
being served with copies of the report and recommendation. Id.
at 24.
The petitioner then filed a motion for an extension of time to
file objections to the magistrate judge’s report and
recommendation. ECF No. 21/ECF No. 462. This Court granted the
motion for an extension of time. ECF No. 22/ECF No. 463. The
order directed the petitioner to file objections on or before
August 19, 2019. Id. at 1.
The petitioner later filed another motion that sought: (1) an
extension of time to file objections to the magistrate judge’s
report and recommendation and (2) permission to submit certain case
law. ECF No. 23/ECF No. 464. This Court then denied the motion as
moot. ECF No. 24/ECF No. 465. In that order, this Court noted
that the petitioner is free to submit or cite, as part of his
objections to the magistrate judge’s report and recommendation, any
case law the petitioner deems relevant. Id. at 1. The Court
stated that it would then consider such case law as part of the
petitioner’s objections to the magistrate judge’s report and
recommendation. Id.
The petitioner then filed another motion for an extension of
time to file objections to the magistrate judge’s report and
10
recommendation. ECF No. 30/ECF No. 472. The Court granted as
framed the petitioner’s motion to extend the deadline to file
objections. ECF No. 31/ECF No. 473. The order directed the
petitioner to file objections on or before August 26, 2019. Id.
at 2.
Shortly thereafter, the petitioner filed a motion to stay
these proceedings. ECF No. 32/ECF No. 475. This Court denied the
petitioner’s motion to stay. ECF No. 33/ECF No. 476. The order
confirmed that the petitioner is to file his objections on or
before August 26, 2019. Id. at 2.
The petitioner then filed a motion titled as “Motion for Leave
Respectfully Requesting That This Court Grant Petitioner Three (3)
Different Orders.” ECF No. 36/ECF No. 479. Specifically, the
petitioner requests that this Court:
(1) Grant Him Permission To File [a] Rule 15(c)(2) Motion
To Amended – Supplement the original pleading under Mayle
Intra., with attached § 2255 and accompanies Memorandum
of Law Pursuant to Davis8; (2) Grant Him Permission To
File A (‘oversize’) Rule 15(c)(2) Motion and; (3)
Granting An Order Directing The Assistant U.S. Attorney
Involved In This Civil No. 1:16-cv-100, Collateral Part
Or All Of The Grounds Petitioner Raises Within This Rule
15(c)(2) Motion, Attached § 2255 and Accompanied
Memorandum of Law.
Id. at 1 (emphasis omitted).
Specifically, with respect to his first request, the
petitioner requests that he be allowed to ‘amend–supplement’ the
8United States v. Davis, 139 S. Ct. 2319 (2019).
11
original pleading before this Court under Johnson Supra by it being
a body part of Davis.” Id. at 2 (emphasis omitted). With respect
to his second request, the petitioner refers to his attached
memorandum of law that asserts that this Court should permit him
“this (oversize) Rule 15(c)(2) Motion” in the “interest of
Justice.” Id. at 2 (emphasis omitted). With respect to his third
request, the petitioner “urges this Court to take judicial notice
that based on the facts set forth above . . . that it should
‘grant an order directing the (AUSA) to file a timely response or
concede’ to Petitioners Rule 15(c)(2) (Grounds).” Id. (emphasis
omitted).
In his attached memorandum of law, the petitioner states that
his “primary contention before this Court are the recent Supreme
Court opinion(s)–decision(s) in Johnson-II, Dimaya, and in
particular Davis all supra, that each one are [‘new substantive’]
rulings of criminal procedure.” ECF No. 36 at 3/ECF No. 479-1 at 3
(emphasis omitted). He further states that he “is allowed to file
Rule 15(a) or (c) [Amendment or Supplemental] Motion and Memorandum
of Law to actually challenge the jury instructions under 18 U.S.C.
§ 2, Pinkerton liability theories and § 924(c)(3)(B)
‘unconstitutional vague residual clause statute.’” Id. (emphasis
omitted). The petitioner then “urges this Court to take judicial
notice that he was prosecuted under two different (‘flawed’) jury
instructions liability theories of guilt.” Id. at 4. Under a new
12
section titled “Objections to the Magistrate Judge’s July 3, 2019,
(R&R),” the petitioner requests that this Court “recognize that
Davis is a body part in conjunction with Johnson-II and Dimaya,
that critically raises serious questions, not for a jury, but of
law that effects many different criminal statutes, Circuit
Precedents and Federal sentences that include: ‘18 U.S.C. § 2,
Pinkerton liability theories’ and ‘§924(c)’.” Id. Under a new
heading titled “First Question Presented for Review,” the
petitioner cites Rosemond v. United States, 572 U.S. 65 (2014).
Id. at 5. The petitioner states that “the jury verdict did not
reveal whether Petitioner’s convictions were based on the ‘Aiding
and Abetting' liability or ‘Pinkerton’ liability. The ‘aiding and
abetting’ instruction given to the jury is now invalid.” Id.
(emphasis omitted). The petitioner then asserts that this Court
should take “judicial notice that with the (‘flawed’) jury
instructions . . . the aiding and abetting liability theory not
only must fall (set aside and vacated); but also raises a serious
question not for the jury, upon the law; whether the Pinkerton
Conspiracy Liability can now survive as well.” Id. (emphasis
omitted). Moreover, the petitioner contends “for sake of argument;
both ‘conspiracy’ under the ‘Pinkerton’ or § 18 U.S.C. § 371 jury
instructions standing alone do not qualify as Crimes of Violence,
neither under the § 924(c)(3)(A) ‘Force Clause’ nor under the no
longer qualified [ ] [sic] §924(c)(3)(B).” Id. Therefore, the
13
petitioner concludes, “Counts Four and Six must be set aside and
vacated with an additional order directing the BOP to immediately
release the Petitioner from Federal custody and into the Supervised
Probation Officer’s jurisdiction.” Id. Then, the petitioner
asserts that “it cannot be categorically true that the § 2 Statute
has as an element ‘the use, attempted use, or threatened use of
physical force against the person or property of another' and
Statute § 2, at most, defines an offense in a way that allows for
both violent and non-violent means of commission. Therefore, that
offense is not categorically a crime of violence under the force
clause.” Id. The petitioner then contends that there is no
uniformity among the courts as to whether a categorical or modified
categorical approach applies when considering whether a predicate
offense constitutes a crime of violence under § 924(c)’s “force
clause.” Id. at 7. The petitioner states that “18 U.S. c&2
statute is unconstitutionally vague because it fails to not only
give ordinary people fair notice of the conduct it punishes or ‘is
so standard less that it invites arbitrary enforcement.’” Id. The
petitioner then asserts that “[a] defendant cannot be punished
under the Johnson II, Mathis, Dimaya, and Davis, void, for
vagueness doctrine. Therefore, employing the rule of Lenity’s
teaching that ambiguities about the breadth of a criminal statute
should be resolved into the defendants favor, Counts 2 through 6
must be invalidated.” Id.
14
The petitioner also attached a new motion under § 2255. ECF
No. 36-2/ECF No. 479-2. In that attached motion, under “Ground
One,” the petitioner states: “[w]hether . . . The Petitioner was
prosecuted under two different flawed jury instructions liability
theories of guilt which the jury verdict further does not reveal
specifically under what theory, and under the Davis doctrine, it
has complicated the issue even worse by one or both of those two
different flawed Hobbs Act robbery liability theories cannot
constitute as a crime of violence under the § 924(c)(3)(A) ‘Force
Clause’ nor § 924(c)(3)(B) unconstitutional vague ‘residual
clause.’” Id. at 5. Under “Ground Two,” the petitioner states,
“[i]n the wake of the Supreme Court recent decision: Part one:
whether . . . it has caused ‘ambiguity and split’ among the lower
federal courts, as to which ‘approach’ is to be applied in cases as
this where the petitioner was ‘contemporaneously’ charged and jury
were instructed of only non-violent Hobbs Act robbery elements?
Part Two: whether . . . it has also caused 18 U.S.C. § 2 statute to
be unconstitutionally vague–ambiguous?” Id. at 6. Under “Ground
Three,” the petitioner states: “[w]hether a single criminal episode
conspiracy agreement to use, carry or posses firearms in violation
of 2 simultaneous Hobbs Act robberies prohibits multiple
consecutive 924(c)’s sentences.” Id. at 8.
This Court denies the petitioner’s motion based on Federal
Rule of Civil Procedure 15(c)(2) (ECF No. 36) as untimely since the
15
petitioner filed this motion after the magistrate judge entered a
report and recommendation and on the date objections to the report
and recommendation were due. However, this Court will consider
certain portions of the motion to the extent that those portions
can be construed as objections to the magistrate judge’s report and
recommendation. Moreover, this Court considers, as part of the
petitioner’s objections, any case law cited throughout the
petitioner’s motion and his attached memorandum of law, regardless
of whether that case law is in support of the petitioner’s Rule
15(c)(2) motion.
For the reasons that follow, this Court finds that the report
and recommendation of the magistrate judge should be affirmed and
adopted in its entirety.
II. Applicable Law
Under 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de
novo review of any portion of the magistrate judge’s recommendation
to which an objection is timely made. Because the petitioner filed
objections to the report and recommendation, the magistrate judge’s
recommendation will be reviewed de novo as to those findings to
which the petitioner objected. As to those findings to which
objections were not filed, all findings and recommendations will be
upheld unless they are “clearly erroneous or contrary to law.” 28
U.S.C. § 636(b)(1)(A).
16
Because certain portions of the petitioner’s motion (ECF No.
36) can be construed as objections to the report and
recommendation, the Court will review the portions of the
magistrate judge’s recommendation that the petitioner objected to
de novo. As previously mentioned, this Court will also consider as
part of the petitioner’s objections, any case law cited throughout
the petitioner’s motion and his attached memorandum of law,
regardless of whether that case law is in support of the
petitioner’s Rule 15(c)(2) motion.
III. Discussion
On de novo review, this Court adopts and affirms the report
and recommendation (ECF No. 19) in its entirety.
In his recommendation, with respect to Grounds One, Two,
Three, and Five of the petitioner’s motion (ECF No. 1), the
magistrate judge properly found that since the sentence the
petitioner received was not based on the application of the ACCA’s
residual clause, and because the sentence was enhanced by the
application of the § 924(c)(1)(A)(ii) and § 924(c)(1)(C)(I) “force
clauses,” the petitioner’s argument that Johnson renders his
convictions and/or sentences for these charges invalid lacks merit.
Id. at 17-18. The magistrate judge further correctly determined
that there is no unconstitutionally vague language with respect to
the relevant statutes at issue, and so the petitioner’s convictions
on Counts One, Two, and Three are unaffected by Johnson. Id.
17
at 18-19. Moreover, the magistrate judge properly noted that
there is no “void for vagueness” language in Count Five, and so his
conviction is unaffected by Johnson. Id. at 19-20. The magistrate
judge further correctly indicated that: (1) the Fourth Circuit has
held that bank robbery is still a crime of violence, even after
Johnson; (2) that the overwhelming weight of authority indicates
that bank robbery violations under § 2113(a) are crimes of violence
under § 924(c)’s “force clause;” and (3) that every court to
address the issue has found that Hobbs Act robbery is still a crime
of violence after Johnson. Id. at 20. Therefore, the magistrate
judge properly concluded that Grounds One, Two, Three, and Five are
without merit. Id.
With respect to Grounds Four, Six, and Seven, the magistrate
judge correctly stated that although the Supreme Court of the
United States has found that the residual clause of the definition
of violent felony in § 924(c)(3)(B) was unconstitutionally vague,
it has not yet been decided whether that holding will be applied
retroactively to cases on collateral review. Id. at 22-23 (citing
Davis, 139 S. Ct. 2319 (2019)). Importantly, the magistrate judge
determined that the petitioner is not entitled to relief even if
the Davis holding was retroactive since the petitioner was not
convicted under the § 924(c)(3)(B) residual clause but rather his
Ground Four and Six convictions were under the “force” clauses
contained in 18 U.S.C. § 924(c)(1)(A)(ii) and (c)(1)(C)(i). Id.
18
at 23. This Court finds that the magistrate judge properly
concluded that Grounds Four, Six, and Seven are without merit as
well. Id. at 21-23.
Upon de novo review, this Court finds that the petitioner’s
contentions fail and the court decisions cited by the petitioner do
not afford the petitioner relief. Further, the magistrate judge
properly reviewed the petition and correctly applied the applicable
substantive law.
Thus, this Court upholds the magistrate judge’s recommendation
and overrules the petitioner’s objections.
IV. Conclusion
For the reasons discussed above, the report and recommendation
of the magistrate judge (ECF No. 19/ECF No. 460) is hereby AFFIRMED
and ADOPTED in its entirety. Accordingly, the petitioner’s motion
to vacate, set aside, or correct sentence by a person in federal
custody (ECF Nos. 1 and 12/ECF Nos. 350 and 360) is DENIED AND
DISMISSED WITH PREJUDICE. ECF No. 19 at 23/ECF No. 460 at 23.
Moreover, the: (1) the petitioner’s pending motion for status
update/second request to hold proceeding in abeyance for requisite
time (ECF No. 380); (2) the petitioner’s consolidated motion for
status update/motion of notice of change of address/motion to
preserve the rights for equitable tolling (ECF No. 16/ECF No. 396);
(3) the petitioner’s motion for status update/motion to amend/
supplement in support of § 2255 motion (ECF No. 451); and (4) the
19
petitioner’s motion to amend and supplement in accordance with
Federal Rule of Civil Procedure 15(c)(1)(B) and Federal Rule of
Civil Procedure 15(d) (ECF No. 452) are DENIED AS MOOT.
The petitioner’s motion to amend pursuant to Federal Rule of
Civil Procedure 15(c)(2) (ECF No. 36/ECF No. 479) is DENIED AS
UNTIMELY and the petitioner’s objections (ECF No. 36/ECF No. 479)
are OVERRULED.
It is further ORDERED that this case be DISMISSED WITH
PREJUDICE and STRICKEN from the active docket of this Court.
Should the petitioner choose to appeal the judgment of this
Court to the United States Court of Appeals for the Fourth Circuit
on the issues to which objection was made, he is ADVISED that he
must file a notice of appeal with the Clerk of this Court within 60
days after the date of the entry of this order.
Further, Rule 11(a) of the Rules Governing § 2254 and § 2255
cases provides that the district court “must issue or deny a
certificate of appealability when it enters a final order adverse
to the applicant” in such cases. This Court’s memorandum opinion
and order is a final order adverse to the petitioner in a case in
which 28 U.S.C. § 2253(c)(1) requires issuance of a certificate of
appealability to take an appeal.
This Court finds that it is inappropriate to issue a
certificate of appealability in this matter. Specifically, this
Court finds that the petitioner fails to make a “substantial
20
showing of the denial of a constitutional right.” See 28 U.S.C.
§ 2253(c)(2). A petitioner satisfies this standard by
demonstrating that reasonable jurists would find that any
assessment of the constitutional claims by the district court is
debatable or wrong and that any dispositive procedural ruling by
the district court is likewise debatable. See Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003). Upon review of the record,
this Court finds that the petitioner has not made the requisite
showing. Accordingly, the petitioner is DENIED a certificate of
appealability by this district court. The petitioner may, however,
request a circuit judge of the United States Court of Appeals for
the Fourth Circuit to issue a certificate of appealability.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein and to the pro se
petitioner by certified mail. Pursuant to Federal Rule of Civil
Procedure 58, the Clerk is DIRECTED to enter judgment on this
matter.
DATED: September 16, 2019
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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