The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ROMAN A. BROWN,
Petitioner,
v. Civil Action No. 5:17CV181
(STAMP)
WARDEN, USP HAZELTON
Respondent.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE,
OVERRULING PETITIONER’S OBJECTIONS AND
DISMISSING CIVIL ACTION WITHOUT PREJUDICE
I. Background
The petitioner, Roman A. Brown, a federal inmate designated to
USP Hazelton in Bruceton Mills, West Virginia, filed a petition for
habeas corpus under 28 U.S.C. § 2241. ECF No. 1. In the petition,
the petitioner challenges the validity of his sentence from the
United States District Court for the Middle District of Louisiana,
Baton Rouge. ECF No. 1 at 1. The petitioner alleges that his
prior convictions for simple robbery are not qualifying predicates
under the Armed Career Criminal Act (“ACCA”), citing United States
v. Johnson, 599 U.S. 133 (2010) (“Johnson I”), Johnson v. United
States, 135 S. Ct. 2551 (2015) (“Johnson II”), and Mathis v. United
States, 136 S. Ct. 2243 (2016) for support. Id. at 6; ECF No. 1-1
at 6-7. Specifically, the petitioner alleges that pursuant to
Johnson I, his simple robberies do not qualify as “crimes of
violence” under the “force clause” of 18 U.S.C. § 924(e)(2)(B)(i),
citing United States v. Ervin, 198 F. Supp. 3d 1169, 1177 (D. Mont.
2016). Id. at 8. The petitioner states that the term “physical
force” “connotes an exertion strong enough to constitute power.
That is more force than is entailed in any intentional physical
contact, no matter how slight.” Id. (citing Ervin, 198 F. Supp. at
1177 (quotation marks omitted)). Moreover, the petitioner claims
that since the crime of simple robbery in Louisiana can be
committed with less force than is required by Johnson I, his prior
convictions cannot stand under the “force clause” of
§ 924(e)(2)(B)(i). Id. at 9. Further, the petitioner contends
that since the “residual clause” of § 924(e)(2)(B)(ii) was
invalidated in Johnson II, his prior convictions for Louisiana
simple robbery cannot be used to enhance his sentence under the
ACCA. Id. Specifically, the petitioner states that without the
ACCA enhancement, his statutory maximum sentence is ten years of
imprisonment. Id. For relief, the petitioner requests that this
Court grant his petition, vacate his sentence and grant him release
(as his time served has been more than ten years). Id.
The respondent then filed a motion to dismiss for lack of
jurisdiction (ECF No. 10) and a memorandum in support (ECF No. 11).
In support of the motion to dismiss, the respondent asserts that
the petitioner’s petition should be dismissed since the petitioner
cannot demonstrate that 28 U.S.C. § 2255 is inadequate and
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ineffective to challenge the legality of his sentence. ECF No. 11
at 6. Specifically, the respondent states that the petitioner is
not challenging his conviction, but his sentence; therefore, the
standard established in In re Jones, 226 F.3d 328, 333-34, does not
apply and the Court must review the petitioner’s challenge under
United States v. Wheeler, 886 F.3d 415 (4th Cir. 2018). The
respondent then contends that the petitioner cannot meet the second
prong of the Wheeler test, namely that the settled substantive law
changed and was deemed to apply retroactively on collateral review.
Id. at 11. Specifically, the respondent asserts that Mathis and
Johnson I did not announce a substantive change in the law deemed
to apply retroactively on collateral review. Id. at 12-13.
Moreover, the respondent indicates that the United States Supreme
Court has held that even though the residual clause is void for
vagueness, the force clause and the enumerated crimes clause of
§ 924(e)(2)(B) remain valid as defining the scope of the predicate
felonies under the ACCA. Id. at 13-15.
The petitioner then filed a response to the respondent’s
motion to dismiss. ECF No. 13. In his response, the petitioner
states that the retroactively applicable change in law identified
in his petition is Johnson II. Id. at 3. The petitioner states
that the United States Court of Appeals for the Fifth Circuit held
in his direct appeal that the petitioner’s prior convictions for
simple robbery fell under the “force clause” of § 924(e); however,
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that decision was before Johnson I and Johnson II were decided.
Id. at 2. The petitioner states that the Fifth Circuit’s denial to
grant the petitioner a second or successive § 2255 based on Johnson
II, which was decided before Mathis, was error that demonstrates
§ 2255’s ineffectiveness. Id. The petitioner reiterates that
since the simple robberies can be committed without threat of force
or use of force, those offenses cannot stand under the “force
clause” of § 924(e). Id. at 5. The petitioner asserts that
because the law has substantively changed, the petitioner is able
to proceed under the savings clause. Id.
The respondent filed a reply to the petitioner’s response.
ECF No. 14. In the reply, the respondent maintains that the
petitioner cannot meet the conditions under Wheeler. Id. at 1.
The respondent states that Johnson II is inapplicable and that the
petitioner also fails to meet the third prong under Wheeler, namely
that the petitioner is unable to meet the gate-keeping provisions
of § 2255(h)(2) for second or successive motions. Id. at 2-5.
United States Magistrate Judge James P. Mazzone then entered
a report and recommendation (ECF No. 15) and the petitioner timely
filed objections (ECF No. 16). In his objections, the petitioner
maintains that Johnson II is a substantive change in law that is
retroactively applicable to cases on collateral review. Id. at 3.
The petitioner states that although the petitioner was sentenced
under the “force clause” of the ACCA, there have been several
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substantive changes in the law that erode the Fifth Circuit’s
holding that the petitioner’s prior convictions for simple robbery
fell under the “force clause” of § 924(e), citing Johnson I,
Johnson II, and Mathis. Id. at 4. The petitioner states that
after Johnson I, the petitioner’s simple robberies do not qualify
as “crimes of violence” under the “force clause” of the ACCA. Id.
at 4-5. The petitioner then states that in Johnson II, the Supreme
Court found that the residual clause of § 924(e)(2)(B) was
unconstitutionally vague and could not be used to enhance a
sentence under the ACCA; therefore, the petitioner’s prior
convictions for simple robbery cannot be used to enhance his
sentence. Id. at 5-6. Moreover, the petitioner contends that he
has met the third prong under the Wheeler test since the Fifth
Circuit denied him permission to file a second or successive
petition on August 23, 2016, which was prior to Welch, 136 S. Ct.
1257 (2016) and Mathis. Id. at 5-6. Therefore, in erroneously
denying the petitioner’s application, the petitioner has
demonstrated why § 2255 is inadequate or ineffective. Id.
The respondent then filed a response to the petitioner’s
objections. ECF No. 17. In the response, the respondent states
that the magistrate judge was correct in determining that the
petitioner failed to satisfy either the second or third prongs of
Wheeler, and that the Court is without jurisdiction to consider the
§ 2241 petition. Id. at 1.
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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.
III. 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).
IV. Discussion
This Court has conducted a de novo review of the portion of
the magistrate judge’s report and recommendation and finds that the
magistrate judge’s report and recommendation should be affirmed and
adopted in its entirety.
First, the magistrate judge correctly found that the
petitioner has failed to satisfy either the second or third prongs
of Wheeler. Id. at 9. Specifically, in Johnson II, the Supreme
Court held that the residual clause of § 924(e)(2)(B)(ii) was void
for vagueness, thereby invalidating any increased sentence imposed
under that subsection. In Welch v. United States, 136 S. Ct. 1257
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(2016), the Supreme Court held that its decision in Johnson II was
retroactive and provided that any prisoner who was sentenced under
the residual clause of the ACCA could file a § 2255 petition to
seek relief. Id. at 10. However, the petitioner was not sentenced
under the residual clause of the ACCA, but was sentenced under the
“force clause” of § 924(e)(2)(B)(I) and that is why the Fifth
Circuit found that Johnson II was inapplicable to his case. Id.
Second, the magistrate judge properly found that Mathis does
not represent a substantive change in the law. Mathis sets a
procedural rule that has not been made retroactive on collateral
review.
For those reasons, this Court upholds the magistrate judge’s
recommendation that the respondent’s motion to dismiss (ECF No. 10)
be granted and that the petitioner’s petition (ECF No. 1) be denied
and dismissed without prejudice. Id. at 11. In so ruling, this
Court overrules the petitioner’s objections (ECF No. 16).
V. Conclusion
For the reasons discussed above, the report and recommendation
of the magistrate judge (ECF No. 15) is hereby AFFIRMED and ADOPTED
in its entirety. Accordingly, the respondent’s motion to dismiss
(ECF No. 10) is GRANTED, the petitioner’s petition for writ of
habeas corpus under 28 U.S.C. § 2241 (ECF No. 1) is DENIED and
DISMISSED WITHOUT PREJUDICE, and the petitioner’s objections (ECF
No. 16) are OVERRULED.
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It is further ORDERED that this case be DISMISSED 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.
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: October 16, 2019
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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