Opinion
No. 3:12-CR-100-TWP-HBG-1 No. 3:16-CV-353-TWP
12-21-2016
FARRIS J. DOBBINS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION
Before the Court is Petitioner's pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Doc. 24]. He bases his request for collateral relief on Johnson v. United States, 135 S. Ct. 2551 (2015), in which the Supreme Court held that the residual clause of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), was unconstitutionally vague [Id.]. The United States responded in opposition on July 21, 2016 [Doc. 25]. Petitioner obtained an extension of time [Docs. 26, 27] and filed a reply on August 25, 2016 [Doc. 28]. For the reasons below, Petitioner's request for leave to "traverse" the United States' response will be GRANTED and § 2255 motion will be DENIED and DISMISSED WITH PREJUDICE.
I. BACKGROUND
On July 25, 2012, Petitioner committed two armed carjackings [Presentence Investigation Report (PSR) ¶¶ 6-10]. He subsequently pled guilty to two counts of armed carjacking, in violation of 18 U.S.C. § 2119, and one count of using, carrying, and brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c), in exchange for dismissal of a second § 924(c) count [Doc. 14]. On February 27, 2013, this Court sentenced Petitioner to an aggregate term of 240 months' incarceration—concurrent 156-month terms for the § 2119 offenses and a consecutive 84 months for the § 924(c) offense [Doc. 20]. No direct appeal was taken. Nearly three and a half years later—on June 20, 2016—Petitioner filed the instant collateral challenge based on the Johnson decision [Doc. 24].
IV. STANDARD OF REVIEW
The relief authorized by 28 U.S.C. § 2255 "does not encompass all claimed errors in conviction and sentencing." United States v. Addonizio, 442 U.S. 178, 185 (1979). Rather, a petitioner must demonstrate "(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law . . . so fundamental as to render the entire proceeding invalid." Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)). He "must clear a significantly higher hurdle than would exist on direct appeal" and establish a "fundamental defect in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error violative of due process." Fair v. United States, 157 F.3d 427, 430 (6th Cir. 1998).
V. ANALYSIS
To the extent Petitioner argues that the Johnson decision invalidated the residual clause in § 924(c)(3)(B)'s definition of crime of violence and that the absence of that provision requires vacatur of his conviction under § 924(c)(1)(A), the argument fails for two reasons.
First, binding Sixth Circuit precedent holds that while Johnson invalidated the residual provision of the ACCA and identically worded clause in Section 4B1.2 of the United States Sentencing Guidelines, § 924(c)(3)(B)'s definition of crime of violence remains unaffected. See United States v. Pawlak, 822 F.3d 902, 911 (6th Cir. 2016) (concluding "rationale of Johnson applies equally" to the Guidelines' definition of crime of violence); United States v. Taylor, 814 F.3d 340, 376-79 (6th Cir. 2016) (recognizing at least four "significant differences" between the residual clause in § 924(c)(3)(B) and the ACCA's residual clause and noting "the argument that Johnson effectively invalidated [the former] is . . . without merit").
Second, even if Johnson's reasoning could be used to invalidate § 924(c)(3)(B)'s residual clause, Petitioner's conviction under § 924(c) would remain valid because armed carjacking is crime of violence under the use-of-physical-force clause contained in § 924(c)(3)(A). An offense qualifies as a crime of violence if it "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). Federal carjacking—defined as the intentional taking of a motor vehicle from the presence of another "by force and violence or by intimidation," 18 U.S.C. § 2119—invariably involves the use of force capable of causing physical pain or injury, see In re Smith, No. 16-13661-J, 2016 WL 3895243, at *3 (11th Cir. July 18, 2016) (finding, post-Johnson, that federal carjacking categorically qualifies as a crime of violence under the use-of-physical-force clause in 18 U.S.C. § 924(c)(3)(A)); United States v. Jones, No. 15-30752, 2016 WL 1042534, at *1 (5th Cir. March 14, 2016) (stating that "[c]arjakcing is always and without exception a 'crime of violence' as that term is defined in 18 U.S.C. § 924(c)(3)). The Johnson decision has no impact on this categorization and, as a result, cannot serve as grounds for granting the requested relief.
II. CONCLUSION
For the reasons discussed, Petitioner's request for leave to file a "traverse" to the United States' response [Doc. 28] will be GRANTED and § 2255 motion [Doc. 24] will be DENIED and DISMISSED WITH PREJUDICE. The Court will CERTIFY any appeal from this action would not be taken in good faith and would be totally frivolous. Therefore, this Court will DENY Petitioner leave to proceed in forma pauperis on appeal. See Rule 24 of the Federal Rules of Appellate Procedure. Petitioner having failed to make a substantial showing of the denial of a constitutional right, a certificate of appealability SHALL NOT ISSUE. 28 U.S.C. § 2253; Rule 22(b) of the Federal Rules of Appellate Procedure.
AN APPROPRIATE ORDER WILL ENTER.
s/ Thomas W. Phillips
SENIOR UNITED STATES DISTRICT JUDGE