Tracy Wendell Adams v. Doerer

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

TRACY WENDELL ADAMS, No. CV 23-09875-GW (DFM)

Petitioner, Order Summarily Dismissing Petition

Without Prejudice for Lack of

v. Jurisdiction

DOERER,

Respondent.

Petitioner Tracy Wendell Adams is a federal prisoner proceeding pro se

with a petition for writ of habeas corpus under 28 U.S.C. § 2241. See Dkt. 1

(“Petition”). For the reasons set forth below, the Petition is dismissed for lack

of jurisdiction.

BACKGROUND

In 2008, a grand jury in the United States District Court for the Eastern

District of Virginia indicted Petitioner on three counts: (1) witness tampering

by murder, in violation of 18 U.S.C. § 1512(a)(1)(A), (a)(2)(A); (2) witness

retaliation by murder, in violation of 18 U.S.C. § 1513(a)(1)(B), (a)(2)(A); and

(3) murder using a firearm in furtherance of a crime of violence, in violation of

18 U.S.C. § 924(c), (j)(1). See Petition at 2; United States v. Adams, No. 08-

176 (E.D. Va.) (“Adams I”), Dkt. 7. In exchange for the government’s

assurance not to seek the death penalty, Petitioner pleaded guilty to all three

counts and agreed to a sentence of life imprisonment. See Adams I, Dkts. 17,

29.

In June 2016, Petitioner moved under 28 U.S.C. § 2255 to vacate his

§ 924(c) conviction pursuant to the U.S. Supreme Court’s decision in Johnson

v. United States, 576 U.S. 591 (2015). See Adams I, Dkt. 48. The district court

granted the government’s motion to dismiss because the Supreme Court had

not yet addressed the constitutionality of § 924(c)(3)(B), and Petitioner

therefore did not fall within the statute of limitations exception. See Adams I,

Dkt. 56.

Petitioner appealed to the Fourth Circuit. See United States v. Adams,

No. 17-6041 (4th Cir.) (“Adams IT”), Dkt. 1. With the government’s consent,

Petitioner several times moved to hold his case in abeyance for pending cases

in the Fourth Circuit and the Supreme Court. See, e.g., United States v. Davis,

139 S. Ct. 2319 (2019); Sessions v. Dimaya, 138 S. Ct. 1204 (2018); United

States v. Simms, 914 F.3d 229 (4th Cir. 2019) (en banc). The Fourth Circuit

lifted the hold after the Supreme Court decided Davis and set an informal

briefing schedule. See Adams II, Dkt. 20. After Petitioner failed to file his

opening brief, the Fourth Circuit dismissed the appeal for failure to prosecute

in June 2020. See id., Dkt. 43.

Here, Petitioner argues that his § 924(c) conviction cannot be sustained

because it is predicated on crimes that do not qualify as “crimes of violence.”

See Petition at 12-22. The magistrate judge ordered Petitioner to show cause

why the Petition should not be dismissed for lack of jurisdiction. See Dkt. 5.

Petitioner did not respond.

Il. LEGAL STANDARD

Rule 4 allows a district court to dismiss a petition if it “plainly appears

from the petition and any attached exhibits that the petitioner is not entitled to

relief in the district court.” Rule 4, Rules Governing Section 2254 Cases; see

also Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983) (Rule 4

“explicitly allows a district court to dismiss summarily the petition on the

merits when no claim for relief is stated”).

Generally, a federal prisoner may only challenge the legality of his

confinement through a 28 U.S.C. § 2255 motion. See Marrero v. Ives, 682

F.3d 1190, 1192 (9th Cir. 2012). Under the “escape hatch” provision of

§ 2255(e), however, a federal prisoner may file a § 2241 petition, but only if the

§ 2255 remedy is “inadequate or ineffective to test the legality of his

detention.” 28 U.S.C. § 2255(e); see also Marrero, 682 F.3d at 1192. Ina

§ 2241 petition, the prisoner typically must show (1) actual innocence, and (2)

that he “has not had an unobstructed procedural shot at presenting” his

challenge. Marrero, 682 F.3d at 1192 (citations and internal quotation marks

omitted).

Il. DISCUSSION

A. Actual Innocence

Petitioner challenges his conviction for murder using a firearm in

furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c), ()(1).

Petitioner’s conviction rested on two predicates: witness tampering by

completed murder, in violation of § 1512(a)(1), and witness retaliation by

completed murder, in violation of § 1513(a)(1). He argues that those predicates

are no longer valid crimes of violence after the Supreme Court’s decisions in

Johnson, 576 U.S. 591, and Taylor v. United States, 142 S. Ct. 2015 (2022).

“In this circuit, a claim of actual innocence for purposes of the escape

hatch of § 2255 is tested by the standard articulated by the Supreme Court in

Bousley v. United States, 523 U.S. 614], 623] (1998): ‘To establish actual

innocence, petitioner must demonstrate that, 1n light of all the evidence, it is

more likely than not that no reasonable juror would have convicted him.’”

Stephens v. Herrera, 464 F.3d 895, 898 (9th Cir. 2006). “‘[A]ctual innocence’

means factual innocence, not mere legal insufficiency.” Bousley, 523 U.S. at

623.

Under 18 U.S.C. § 924(c), any person who uses or carries a firearm

“during and in relation to any crime of violence” is subject to punishment. A

“crime of violence” is “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). The first clause is known as the “elements clause” (or the “force

clause”); the second clause is called the “residual clause.” In United States v.

Davis, 139 S. Ct. 2319 (2019), the Supreme Court held that the residual clause

is unconstitutionally vague. To stand convicted of using a firearm during and

in relation to a crime of violence, an offender must therefore satisfy the

elements clause.

“In determining whether a crime falls within the elements clause and

thus constitutes a crime of violence, we apply the categorical approach.”

United States v. Buck, 23 F.4th 919, 924 (9th Cir. 2022). The court considers

“whether the elements of the statute of conviction meet the federal definition

of a ‘crime of violence.’” Id. Here, the question is whether a conviction under

§§ 1512 or 1513 necessarily “has 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)). “If any—even the least culpable—of the acts

criminalized do not entail that kind of force, the statute of conviction does not

categorically match the federal standard.” Borden v. United States, 141 S. Ct.

1817, 1822 (2021).

The Ninth Circuit recently held that attempted killing in violation of

§ 1512(a)(1) is a crime of violence under § 924(c)(3)(A). See Dorsey v. United

States, 76 F.4th 1277, 1283-84 (9th Cir. 2023) (“[A]ttempted killing in

violation of § 1512(a)(1) is a categorical match with § 924(c)(3)’s elements

clause because it requires proving that the defendant intentionally used or

attempted to use physical force against another.”). Given Dorsey, it seems

without question that Petitioner’s predicate convictions of completed murder

are crimes of violence. Cf. In re Irby, 858 F.3d 231, 236 (4th Cir. 2017)

(collecting cases in which courts have held murder crimes are crimes of

violence within the meaning of the force clause and rejecting the “illogical

result” of having “the most morally repugnant crime—murder—not be a crime

of violence”).

Petitioner correctly notes that the Supreme Court in Taylor held that

attempted Hobbs Act robbery does not qualify as a crime of violence under

§ 924(c)’s elements clause. See 142 S. Ct. at 2020-21. This is because

§ 1951(b)(1) requires either “actual or threatened force,” which means that an

attempt to commit Hobbs Act robbery can be proven by establishing only that

the defendant attempted to threaten force and took a substantial step toward

that end. See id. But that holding does not assist Petitioner, as “the holding in

Taylor rests on a mismatch between § 924(c) and the specific elements of

Hobbs Act robbery. That mismatch does not exist with respect to

§ 1512(a)(1).” Dorsey, 76 F.4th at 1283. To obtain a conviction under

§§ 1512(a)(1) and 1513(a)(1), the government had to establish that Petitioner

“kill[ed] or attempt[ed] to kill another person.” A mere attempted threat of

force is not a valid ground for a §§ 1512(a)(1) or 1513(a)(1) conviction. Taylor

is thus not helpful to Petitioner.

B. Unobstructed Procedural Shot

To determine whether a petitioner has not had an unobstructed

procedural shot, the court looks to: “(1) whether the legal basis for petitioner’s

claim did not arise until after he had exhausted his direct appeal and first §

2255 motion; and (2) whether the law changed 1n any way relevant to

petitioner’s claim after that first § 2255 motion.” Harrison v. Ollison, 519 F.3d

952, 959 (9th Cir. 2008).

Petitioner relies heavily on Johnson, which held that “imposing an

increased sentence under the residual clause of the Armed Career Criminal Act

violates the Constitution’s guarantee of due process.” 576 U.S. at 606.

However, Johnson was decided in June 2015, one year prior to Petitioner filing

his § 2255 motion. Petitioner was clearly aware of Johnson, arguing in his

§ 2255 motion that his conviction on count three should be vacated in light of

that decision. See Adams IJ, Dkt. 48.

Petitioner also cites Taylor, which held that attempted Hobbs Act

robbery does not qualify as a crime of violence under § 924(c)’s elements

clause. See 142 S. Ct. at 2020-21. But as explained above, Taylor rests on a

mismatch between § 924(c) and the specific elements of Hobbs Act robbery.

That mismatch does not exist with respect to Petitioner’s predicate convictions

of witness tampering by completed murder and witness retaliation by

completed murder. In short, Taylor did not change the law in a way material

to Petitioner’s conviction.

Petitioner’s only argument to the contrary is that while pursuing his

§ 2255 petition, the Fourth Circuit denied his motion for abeyance. See

Petition at 4. But that is inaccurate. As set forth above, Petitioner several times

successfully moved to hold his case in abeyance for pending cases in the

Fourth Circuit and the Supreme Court. The Fourth Circuit removed the case

from abeyance after the Supreme Court decided Davis and set an informal

briefing schedule. See Adams II, Dkt. 20. Petitioner’s appeal was ultimately

dismissed for failure to prosecute after he failed to file his informal opening

brief. See id., Dkt. 43. Petitioner’s failure to obtain a decision on the merits

was not caused by procedural obstructions, but by his own default.

IV. CONCLUSION

The Court has no jurisdiction over the Petition because it falls under

§ 2255 and not § 2241. See Stephens, 464 F.3d at 899. The Petition, which is

properly brought under § 2255, must be brought in the sentencing court and

with the permission of the Fourth Circuit. See id. at 897 (“A § 2255 motion

must be filed in the district where the defendant was sentenced.”); 28 U.S.C.

§ 2255(h) (providing that second or successive § 2255 motions must be certified

by court of appeals).

Let judgment be entered dismissing this action without prejudice for lack

of jurisdiction.

Date: April 4, 2024 a Lena £ Th, jim

GEORGE H. WU

United States District Judge

Presented by:

at! 2

United States Magistrate Judge