# Tracy Wendell Adams v. Doerer

> District Court, C.D. California · April 4, 2024

URL: https://www.frixlaw.com/law-library/cases/9986373

## Case

- **Court:** District Court, C.D. California
- **Decided:** April 4, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9986373. Public record. Not legal advice.