Opinion
CRIMINAL NO. 4:12-CR-6-CDL CIVIL NO. 4:16-CV-196-CDL
07-10-2019
WILLIAM DILMUS JONES, Movant, v. UNITED STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATION
Pending before the Court are William Dilmus Jones's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody and Amended Motion to Vacate Conviction Under 28 U.S.C. § 2255. Mot. Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, ECF No. 112; Am. Mot. to Vacate Conviction Under 28 U.S.C. § 2255, ECF No. 124. For the reasons discussed below, it is recommended that Jones be granted § 2255 relief and an evidentiary hearing being denied.
I. BACKGROUND
On June 11, 2013, a grand jury indicted Jones for conspiracy to possess methamphetamine with intent to distribute (Count One), possession of a firearm by a convicted felon (Count Two), possession of methamphetamine with intent to distribute (Count Three), and possession of a firearm in furtherance of a drug trafficking crime (Count Four). Superseding Indictment, ECF No. 32. In relation to Count Two, the Superseding Indictment listed three prior convictions:
(1) the offense of Robbery in Docket Case No. 339128 in the 176th Judicial District Court of Harris County, Texas on December 21, 1981;Superseding Indictment at 3-4, ECF No. 32.
(2) the offense of Aggravated Assault in Criminal Case No. SU-93CR2606-3 in the Superior Court of Muscogee County, Georgia on October 31, 1994;
(3) the offense of Possession With Intent to Distribute Methamphetamine, Use of a Firearm During a Drug Trafficking Crime, and Possession of a Firearm by a Convicted Felon in Criminal Case No. CR 94-1-001-CDL in the United States District Court for the Middle District of Georgia on July 13, 1994.
Following a four-day jury trial, Jones was found guilty of Counts One, Two, and Three, and not guilty of Count Four. Verdict, ECF No. 80.
The United States Probation Office ("Probation") issued its final presentence investigation report ("PSR") on April 21, 2014. PSR, ECF No. 90. In relation to Count Two, Probation determined the base level offense was twenty-four pursuant to USSG § 2K2.1(a)(2) (2013), which provides that "the base offense level for a defendant who committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense shall be [twenty-four]." PSR at 9, ECF No. 90. This provision applied because Jones "has two prior felony convictions for Possession with Intent to Distribute Methamphetamine and Possession of Firearm During Commission of Drug Trafficking Offense, U.S. District Court case number 4:94-CR-1-001, and Aggravated Assault, Muscogee County, Georgia Superior Court case number SU93CR2606." Id. Noting that seventeen firearms were found in Jones's bedroom, Probation added four levels because the offense involved between eight and twenty-four firearms. Id.; USSG2K2.1(b)(1)(B)). Because three of the firearms had been reported stolen, Probation added two more levels. Id.; U.S.S.G. 2K2.1(b)(4)(A). While these total thirty, the Sentencing Guidelines provide that when applying U.S.S.G. § 2K2.1(b)(1) through (b)(4), the cumulative offense level may not exceed twenty-nine. Id; U.S.S.G. 2K2.1(b).
Counts One and Three were controlled substance offenses. PSR at 10, ECF No. 90. Plus, Jones had at least "two prior felony convictions for a controlled substance offense and crimes of violence." Id. Jones was, therefore, subject to sentence enhancement under U.S.S.G. § 4B1.1(a) and (b). Id. This resulted in a "higher career offender table offense level of [thirty-two]." Id.
Probation also classified Jones as a career offender under the Armed Career Criminal Act ("ACCA"). Id.; 18 U.S.C. § 924(e). Probation maintained this classification was appropriate because Jones committed his 18 U.S.C.§ 922(g)(1) offense (Count Two), after having been convicted for three violent felony offenses or serious drug offenses committed on three separate occasions. Id. Based on the Armed Career Criminal Guidelines, Jones's offense level was ultimately thirty-three. Id.
Probation documented Jones's lengthy criminal history. PSR at 11, ECF No. 90. Jones had five unscored criminal convictions. PSR at 11-15; ECF No. 90. He had three scored convictions. PSR at 12-15, ECF No. 90. The first scored conviction followed his October 20, 1993, arrest. PSR at 12-13, ECF No. 90. On June 30, 1994, Jones was convicted in the United States District Court, Middle District of Georgia, Columbus Division, in case number 4:94-CR-1-001, of possession with intent to distribute methamphetamine, possession of a firearm during the commission of a drug trafficking offense, and possession of a firearm by a convicted felon. Id. He was sentenced to a total of 138 months' imprisonment following by three years' supervised release. Id. Probation added three criminal history points for this conviction. Id.
The second scored conviction occurred on October 31, 1994, and arose from events that occurred when law enforcement sought to arrest Jones on October 20, 1993. PSR at 13-14, ECF No. 90. Jones was convicted in the Superior Court of Muscogee County, Georgia, in case number SU09CR2651, of two counts of aggravated assault, reckless driving, two counts of leaving the scene of an accident, fleeing to elude police officers, and crossing guard lines with marijuana. Id. The court imposed a ten-year sentence to run concurrently with the federal sentence in 4:94-CR-1-001. Id. Probation added three criminal history points for this conviction. Id.
The third scored conviction was a June 9, 2011, conviction in the Lee County District Court in Opelika, Alabama. PSR at 15, ECF No. 90. Jones was convicted of second-degree possession of marijuana, pistol without a permit, and attempting to elude police in case numbers DC-10-2261, 2261, 2263. PSR at 15, ECF No. 90. He was sentenced to serve one year in prison. Id. Probation added two criminal history points for this conviction. Id.
With eight criminal history points, Jones's criminal history category was IV. PSR at 15, ECF No. 90. However, because Jones was a career offender his criminal history category was VI. Id.
With an Armed Career Criminal total offense level of thirty-three and a criminal history category of VI, Jones's Guidelines range was 235 to 293 months' imprisonment. PSR at 22, ECF No. 90. Probation noted that the "minimum term of imprisonment" for Count Two was fifteen years and the maximum was life. Id.
Trial counsel made no written objections to the PSR. But, at the April 29, 2014, sentencing hearing, he objected to the Armed Career Offender classification. Sentencing Hr'g at 4, ECF No. 108. He argued that the 1994 state court conviction for aggravated assault arose because Jones fled from law enforcement on October 20, 1993, when they tried to arrest him for the drug charges for which he was convicted in the United States District Court, Middle District of Georgia, Columbus Division, in case number 4:94-CR-1-001, on June 30, 1994. He argued that the federal and state convictions "should be treated as basically one event." Sentencing Hr'g at 5, ECF No. 108. The Court overruled the objection, finding the convictions should be treated as two separate offenses. Sentencing Hr'g at 7, ECF No. 108. The Court imposed a sentence of 293 months based on Jones's criminal conduct and his substantial criminal history. Sentencing Hr'g at 14, ECF No. 108.
The PSR detailed the events that occurred on October 20, 1993. When Jones arrived for a planned drug transaction, law enforcement pulled behind his vehicle to arrest him. He fled. When doing so, he attempted to run over an officer who was on foot, rammed into two different law enforcement vehicles, and led officers on a high-speed chase. Jones was convicted of drug related crimes in this Court in Criminal Case No. 4:94-cr-1. Based on the events that occurred during his arrest, he was convicted of aggravated assault, inter alia, in case number SU93CR2606 in the Superior Court of Muscogee County. PSR at 12-14, ECF No. 90.
Jones filed a direct appeal on May 12, 2014. Notice of Appeal, ECF No. 97. He raised one argument: "The district court erred in denying his motion to dismiss the indictment, because the delay before trial violated his right to due process and his right to a speedy trial under the Sixth Amendment." United States v. Jones, 592 F. App'x 920, 921 (11th Cir. 2015) (per curiam). On February 18, 2015, the Eleventh Circuit affirmed the District Court and denied relief. Id. The Eleventh Circuit entered judgment on that same day. United States v. Jones, No. 14-12094 (11th Cir. Feb. 18, 2015). It does not appear that Jones filed a petition for certiorari with the United States Supreme Court. The Eleventh Circuit's mandate issued on March 19, 2015. Mandate, ECF No. 111.
Jones's pro se 28 U.S.C. § 2255 motion was dated June 8, 2016, and filed in this Court June 14, 2015. Mot. Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, ECF No. 112. The Court appointed counsel to represent Jones and ordered that an amended § 2255 motion be filed. Orders, ECF Nos. 117; 121; 123. On June 15, 2017, appointed counsel filed an amended § 2255 motion in which she argued that Jones's "conviction under 18 U.S.C. § 924(e), must be vacated and therefore, his sentence must be reduced in light of the Supreme Court's recent decision in Johnson v. United States, 135 S. Ct. 2551 (2015)." Am. Mot. to Vacate Conviction Under 28 U.S.C. § 2255 at 1, ECF No. 124. The amended § 2255 motion also shows that Jones "continues to assert the grounds enumerated in his initial petition." Id. at 9.
On January 8, 2019, the United States Magistrate Judge ordered the parties to brief whether Jones's December 21, 1981, conviction in Texas state court for robbery still qualifies as a predicate offense under the ACCA. Order, ECF No. 129. Both parties briefed that issue. Gov't Suppl. Resp. to the Def's Mot. Pursuant to 28 U.S.C. § 2255, ECF No. 130; Suppl. Br., ECF No. 131; Pet'r Resp. to Gov't Suppl. Br., ECF No. 132.
On April 2, 2019, the United States Magistrate Judge filed a Report and Recommendation recommending denial of Jones's § 2255 motion. R. & R., ECF No. 133. On April 4, 2019, the Eleventh Circuit decided United States v. Moss, 920 F.3d 752 (11th Cir. 2019). In Moss, the court held that for a conviction to qualify as a predicate offense under the ACCA, it must require intentional, not reckless, use of force. Id. at 759.
On April 15, 2019, Jones filed an Objection to the Report and Recommendation. Obj. to R. & R., ECF No. 134. Jones did not cite Moss or raise any issues regarding the application of Moss. In light of Moss, however, the United States Magistrate Judge withdrew the Report and Recommendation and ordered the parties to file additional briefs regarding whether Jones's December 21, 1981, conviction for robbery in Texas still qualifies as a predicate offense under the ACCA. Order, ECF No. 135. Both parties have now briefed this issue. Gov't Second Suppl. Resp. to the Def.'s Mot. Pursuant to 28 U.S.C. § 2255, ECF No. 136; Suppl. Br., ECF No. 137.
II. TIME-BARRED CLAIMS
The government argues that "other than the Johnson claim," all of Jones's claims are untimely. Gov't Resp. in Opp'n to § 2255 Mot. at 6 n.6, 7-8, ECF No. 126. The Court agrees.
The Antiterrorism and Effective Death Penalty Act ("AEDPA") provides a one-year statute of limitations to file a § 2255 motion. 28 U.S.C. § 2255(f). The statute of limitations starts to run on the latest of four triggering dates: (1) the date on which the movant's conviction was final; (2) the date on which any unconstitutional or unlawful governmental impediment that prevented the movant from filing his motion is removed; (3) "the date on which the right asserted was initially recognized by the Supreme Court and made retroactively applicable to cases on collateral review"; or (4) the date on which facts supporting the claim could have been discovered by due diligence. 28 U.S.C. § 2255(f)(1)-(4).
In most cases, the triggering date is when the movant's conviction is final. 28 U.S.C. § 2255(f)(1). Jones's conviction was final on May 19, 2015. Clay v. United States, 537 U.S. 522, 532 (2003) (holding that "for federal criminal defendants who do not file a petition for certiorari with [the Supreme Court] on direct review, § 2255's one-year limitation period starts to run when the time for seeking such review expires"); U.S. Sup. Ct. R. 13(1) (stating that a petition for a writ of certiorari must be filed 90 days after entry of judgment). He, therefore, had until May 19, 2016, to file a timely § 2255 motion under 28 U.S.C. § 2255(f)(1). Jones, however, did not file his § 2255 motion until June 8, 2016. Thus, unless he can take advantage of one of the triggering dates in 28 U.S.C. § 2255(f)(2)-(4), his motion is untimely.
The Court applies the "mailbox rule" and assumes that Jones gave his motion to prison officials for mailing on June 8, 2016, the date shown on his Certificate of Service, in which he states that he placed "a true and correct copy of the foregoing [motion] . . . in the Prison Mail System at FCC Forrest City Low on the 8th day of June, 2016 . . . ." Mot. Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody at 11, ECF No. 112. The Court also assumes that the amended § 2255 motion dates back to the date of the original motion, and the government does not argue otherwise. See Fed. R. Civ. P. 15(c); Rule 12 of the Rules Governing § 2255 Proceedings in the United States District Courts.
Jones seeks to take advantage of the triggering date in § 2255(f)(3). He states that his claims are timely because they are based on a new substantive rule of law; i.e., Johnson, that was made retroactively applicable to cases on collateral review under Welch v. United States, 136 S. Ct. 1257, 1268 (2016). Mot. Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody at 2, ECF No. 112; Am. Mot. to Vacate, Conviction Under 28 U.S.C. § 2255 at 6-8, ECF No. 124. Jones filed his original § 2255 motion within one year of the June 26, 2015, decision in Johnson, and the Court assumes that his amended motion relates back to the date of the original § 2255 motion.
To determine timeliness, however, the Court "must determine whether each claim asserted in the motion depends on that new decision. If a particular claim does not depend on the new decision, that claim is untimely and must be dismissed." Beeman v. United States, 871 F.3d 1215, 1219 (11th Cir. 2017). In other words, the Court takes "'a claim-by-claim approach to determine timeliness.'" Id. (quoting Zack v. Tucker, 704 F.3d 917, 924, 926 (11th Cir. 2013) (en banc), and Davis v. United Sates, 817 F.3d 319, 327-28 (7th Cir. 2016)). Jones raised the following claims for relief in his original § 2255 motion: (1) Jones's enhanced sentence was based on the residual clause of the ACCA, which was struck down in Johnson; (2) various instances of prosecutorial misconduct stemming from the Assistant United States Attorney's "personal grudge" against Jones; (3) violation of speedy trial rights; (4) insufficient evidence to support the conviction; (5) the District Court erred in admitting Rule 404(b) evidence; (6) the prosecution failed to disclose favorable evidence; (7) the District Court erred by granting four continuances; and (8) various allegations of ineffective assistance of trial counsel. Mot. Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody at 3-11, ECF No. 112.
In the amended § 2255 motion, Jones argued that (1) his "conviction under 18 U.S.C. § 924(e), must be vacated" and "reduced in light of the Supreme Court's recent decision in Johnson," because his three previous convictions did not occur on occasions different from one another; and (2) trial counsel was ineffective for failing to argue that Jones's three previous felony convictions did not occur on occasions different from one another. Am. Mot. to Vacate Conviction Under 28 U.S.C. § 2255 at 3-4 (citing 28 U.S.C. 924(e)(1)), ECF No. 124.
In Johnson, the Supreme Court struck down the residual clause of the ACCA as unconstitutionally vague. Johnson, 135 S. Ct. at 2557. "A Johnson claim contends that the defendant was sentenced as an armed career criminal under the residual clause." Beemann, 871 F.3d at 1220. Claims Two through Eight in the original motion and Claim Two in the amended motion (prosecutorial misconduct; violation of speedy trial rights; insufficient evidence to support a conviction; District Court's evidentiary rulings; the prosecutors' failure to disclose favorable evidence; the District Court's grant of continuances; and ineffective assistance of counsel) clearly do not rely on Johnson. These claims are, therefore, "untimely and must be dismissed." Id. at 1219.
Jones has not shown he is entitled to equitable tolling of the statute of limitations. He does state that he "does not fully understand the law" and "was led to believe that he did not have any grounds for an appeal or relief." Mot. Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody at 2, ECF No. 112. Vague allegations such as these do not warrant equitable tolling. Perez v. Florida, 519 F. App'x 995, 997 (11th Cir. 2013) (citing Rivers v. United States, 416 F.3d 1319, 1323 (11th Cir. 2005)) (stating that "a lack of legal education and related confusion or ignorance about the law" does not entitle a movant to equitable tolling).
While Jones purports to rely on Johnson for Claim One in the amended motion, a review of the Claim reveals that it does not actually depend on Johnson. Jones argues that the felonies involved in the 1994 state and federal convictions were not "'committed on occasions different from one another,'" and, therefore, he does not have three previous convictions necessary to qualify him as a career offender under the ACCA. Am. Mot. to Vacate Conviction Under 28 U.S.C. § 2255 at 3-4 (citing 28 U.S.C. 924(e)(1)), ECF No. 124. This simply is not a Johnson claim; the argument in no way relies upon Johnson. "A Johnson claim contends that the defendant was sentenced as an armed career criminal under the residual clause." Beeman, 871 F.3d at 1220. Jones's argument in Claim One of his amended argument does not involve the residual clause or Johnson. This claim is, therefore, time-barred and must be dismissed. Id.
This leaves only Claim One in his original § 2255 motion.
III. JOHNSON CLAIM
In Claim One in the original motion, Jones "challeng[ed] the predicate offenses that w[ere] used to enhance his sentence under [the] ACCA and . . . request[ed] a reduction in sentence . . . ." Mot. Pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody at 3, ECF No. 112. One of the prior convictions used to impose the ACCA enhancement was Jones's 1981 conviction for robbery under Texas Law. Superseding Indictment at 3, ECF No. 32. Liberally construed, Claim One of his original pro se motion alleged that his 1981 conviction for robbery under Texas law no longer qualified as a predicate offense under the ACCA. The government acknowledged this was a timely-filed Johnson claim. Gov't Resp. in Opp'n to § 2255 Mot. at 9, ECF No. 126.
Because this area of law has been in a state of flux, the government requested the opportunity to address the issue after the Fifth Circuit decided United States v. Fennell, No. 3:15-CR-443-L (01), 2016 WL 4491728 (N.D. Tex. Aug 25, 2016), reconsideration denied, No. 3:15-CR-443-L (01), 2016 WL 4702557 (N.D. Tex. Sept. 8, 2016), appeal docketed, No. 1611424 (5th Cir. Aug. 2, 2017). Gov't Resp. in Opp'n to § 2255 Mot. at 13, ECF No. 126. Following Fennell, both parties briefed the issue. Gov't Suppl. Resp. to the Def's Mot. Pursuant to 28 U.S.C. § 2255, ECF No. 130; Suppl. Br., ECF No. 131; Pet'r Resp. to Gov't Suppl. Br., ECF No. 132. The United States Magistrate Judge filed a Report and Recommendation, in which he found as follows:
Prior to Johnson, courts considered Texas robbery convictions to be predicate offenses under the ACCA's residual clause. United States v. Davis, 487 F.3d 282, 287 (5th Cir. 2007). Because the residual clause was struck down in Johnson, unless Texas robbery is a violent felony under the enumerated or elements clause of the ACCA, Jones does not have three or more predicate offenses and would be entitled to relief.
Robbery clearly does not fall under the enumerated clause because it
is neither "burglary, arson, or extortion," nor does it involve the use of explosives. 18 U.S.C. § 924(e)(2)(B)(ii). Thus, the only issue is whether the offense of robbery under Texas law is a violent felony under the elements clause, which defines violent felony as a crime "punishable by imprisonment for a term exceeding one year . . . that . . . has an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i).
According to the Texas Penal Code, a person commits robbery when "in the course of committing theft . . . and with the intent to obtain or maintain control of the property, he: (1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death." Tex. Penal Code § 29.02(a). Subpart (1) is sometimes referred to as "'robbery-by-injury'" while subpart (2) is referred to as "'robbery-by-threat.'" United States v. Burris, 896 F.3d 320, 323, withdrawn by 908 F.3d 152, 152 (5th Cir. 2018).
There is no indication in the record whether Jones was convicted of robbery-by-injury or robbery-by-threat. It does not appear that any Court has definitively held whether the statute is divisible or indivisible. Id. at 323-24 (stating it need not decide if the statute is divisible or indivisible); United States v. Hall, 877 F.3d 800, 807 (8th Cir. 2017) (assuming, without deciding, that statute is indivisible because movant argued it was indivisible and government did "not suggest otherwise"). If the statute is indivisible, the Court must ask only "'whether the elements of the crime of conviction' include the use of force. Therefore, if either robbery-by-injury or robbery-by-threat does not require the use of force, robbery is not a violent felony." Burris, 896 F.3d at 323-24. If the statute is divisible, the Court could "look at certain judicial records, such as the indictment or the plea colloquy, in order to determine which of the multiple crimes listed in the statute the defendant was convicted of committing." United States v. Davis, 875 F.3d 592, 597 (11th Cir. 2017). But there are no such documents in this case. Gov't Suppl. Resp. to the Def's Mot. Pursuant to 28 U.S.C. § 2255 at 12,
ECF No. 130. "Because we cannot ascertain the variant of robbery for which [Jones] was convicted, we must analyze both robbery-by-injury and robbery-by-threat, even is § 29.02(a) is divisible." Burris, 896 F.3d at 324. If either do not require "the use, attempted use, or threatened use of physical force," then Texas robbery is not a violent felony under the ACCA. 18 U.S.C. § 924(e)(2)(B)(i).
The Eleventh Circuit has not addressed whether robbery in Texas is a violent felony under the elements clause of the ACCA. But the Fifth and Eighth Circuits have. Additionally, the Supreme Court recently addressed what force requirement is necessary in order for a crime to be considered a violent felony under the elements clause.
In United States v. Fennell, the district court held that simple robbery under the Texas Penal Code does not qualify as a violent felony under the elements clause of the ACCA. 2016 WL 4491728, at *4-*6 (N.D. Tex. August 25, 2016). On appeal, the Fifth Circuit merely held that "[a]fter careful study of the briefs, the record, and the relevant case law from the Supreme Court, this circuit, and our sister circuits, we are persuaded that the district court did not commit reversible error." United States v. Fennell, 695 F. App'x 780, 781 (2017).
Approximately one year later the Fifth Circuit revisited the question of whether "'using force' is an element of the offense" of robbery in Texas. Burris, 896 F.3d at 330 (emphasis in original). The Fifth Circuit held that because a "person can 'cause bodily injury' without the use of force," the robbery-by-injury delineated in § 29.02(a)(1) is not a violent felony under the elements clause of the ACCA. Id. at 324 (citations omitted). The court stated that "Texas defines 'bodily injury' as 'physical pain, illness, or an impairment of physical condition.'" Id. at 325 (citing Tex. Penal Code Ann. § 1.07(a)(8)). Texas courts interpret "bodily injury" broadly "'to encompass even relatively minor physical contacts as long as they constitute more than mere offensive touching.'" Id. at 328 (citation omitted). Minor injuries that impair one's physical condition, even with no pain, are encompassed in the Texas definition of bodily injury but such injuries do not require the "'violent force'" described in Johnson. Id. at 329 (citation omitted). Because this broad definition of bodily injury does not require the use of force required by Johnson, robbery-by-injury under Texas law is not an ACCA predicate offense. Id. at 325-28.
Burris, however, was withdrawn, "pending the decision of the en banc court in No. 16-41218, United States v. Reyes-Contreras." United States v. Burris, 908 F.3d 152, 152 (2018). In Reyes-Contreras, the Fifth Circuit did not address whether Texas robbery qualified as a violent felony under the ACCA. Instead, the issue was whether voluntary manslaughter in Missouri
is a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Reyes-Contreras, 910 F.3d at 173. In reaching the determination that voluntary manslaughter was a crime of violence, the Fifth Circuit overruled, in whole or in part, several cases on which it had relied for the holding in Burris, including United States v. Vargas-Duran, 356 F.3d 598 (5th Cir. 2004) (en banc); United States v. Rico-Mejia, 859 F.3d 318 (5th Cir. 2017); and United States v. Villegas-Hernandez, 468 F.3d 874 (5th Cir. 2006). Reyes-Contreras, 910 F.3d at 187.
First, the court overruled prior precedent in which it had held that crimes of violence or violent felonies must entail a direct, destructive use of force. Id. at 180-81 (citations omitted). Instead, "for purposes of identifying a conviction as a [crime of violence], there is no valid distinction between direct and indirect force." Id. at 182. Second, "use of force" does not require "that a defendant intentionally avail himself of that force." Id. at 183 (internal quotation marks and citation omitted). Instead, "reckless conduct can constitute the use of physical force." Id. (citing Voisine v. United States, 136 S. Ct. 2272, 2279 (2016)). Third, there is no distinction between causing injury and using force. Id. "'[T]he knowing or intentional causation of bodily injury necessarily involves the use of physical force.'" Id. (quoting United States v. Castleman, 572 U.S. 157, 162-63 (2014)). Fourth, there is no need for bodily contact—"physical force 'extend[s] to cover those applications of force that are subtle or indirect, rather than those embracing "bodily contact."'" Id. at 184 (citation omitted).
The Eighth Circuit has held that second-degree robbery in Texas is a violent felony under the ACCA. Hall, 877 F.3d at 806-08. The Court stated that "[t]he ultimate question is whether the state statute 'has an element the use, attempted use, or threatened use of physical force,' which is 'force capable of causing physical pain or injury to another person.'" Id. at 807 (citing 18 U.S.C. § 924(e)(2)(B)(i) and Johnson, 559 U.S. at 140)). In order to be convicted of second-degree robbery in Texas, either actual bodily injury or a threat of actual bodily injury must be shown. Id. (citations omitted). "Indeed, 'to constitute the crime of robbery, there must be violence, or intimidation of such character that the injured party is put in fear.'" Id. (citing Devine v. State, 786 S.W.2d 268, 271 (Tex. Crim. App. 1989) (en
banc) (internal quotation marks omitted)). Because actual bodily injury or the threat of imminent bodily injury is required, robbery "'has an element the use, attempted use, or threated use of [violent] physical force,' which 'is force capable of causing physical pain or injury to another person.'" Id. (citing Johnson, 559 U.S. at 140). According to the Eighth Circuit, Texas robbery under Tex. Penal Code § 29.02(a)(1) or (2) is, therefore, a violent felony under the elements clause of the ACCA. Id. at 807-08.
The Supreme Court recently addressed whether a Florida robbery conviction is a predicate offense under the ACCA's elements clause. Stokeling v. United States, 139 S. Ct. 544 (2019). Florida's robbery statute defined robbery as "the taking of money or other property . . . from the person or custody of another, . . . when in the course of the taking there is the use of force, violence, assault, or putting in fear." Id. at 549 (quoting Fla. Stat.§ 812.13(1)). The Florida state courts had explained the force requirement was met by showing "'resistance of the victim that is overcome by the physical force of the offender.'" Id. (quoting Robinson v. State, 692 So. 2d 883, 886 (Fla. 1997)).
The Supreme Court held that "the elements clause [of the ACCA] encompasses robbery offenses that require the criminal to overcome resistance." Id. at 550. The Court clarified that "Johnson did not purport to establish a force threshold so high as to exclude even robbery from ACCA's scope." Id. at 553 (citing Johnson, 559 U.S. at 140). Instead, "the force necessary to overcome a victim's physical resistance is inherently 'violent' in the sense contemplated by Johnson . . . ." Id. (citing Johnson, 559 U.S. at 139). The Court stated that "[t]he altercation need not cause pain or injury or even be prolonged; it is the physical contest between the criminal and the victim that is itself 'capable of causing physical pain or injury.'" Id. (citing Johnson, 559 U.S. at 140). But, the "[m]ere 'snatching of property from another' will not suffice." Id. at 555 (citation omitted).
Applying the reasoning in Stokeling, Reyes-Contreras, and Hall, the Court concludes that robbery under Tex. Penal Code § 29.02(a)(1)-(2) is a violent felony under the ACCA. This Court need not decide if the Texas robbery statute is divisible or indivisible. Even if the statute is divisible, which would allow the Court to use Shepard documents to determine if Jones was convicted of robbery-by-injury or robbery-by- threat, there are no Shepard documents available. Regardless of the subsection under which Jones was convicted, however, the outcome here is the same.
The Court first assumes that Jones was convicted of the least criminal conduct covered by the statute. See United States v. Howard, 742 F.3d 1334, 1345 (11th Cir. 2014). The Court agrees with Respondent that the least criminal conduct is robbery-by-threat, which makes it a crime to commit
theft by "intentionally or knowingly threaten[ing] or plac[ing] another in fear of imminent bodily injury or death." Texas Penal Code § 29.02(a)(2). The first question is whether this conduct has "an element the use, attempted use, or threatened use of physical force against the person." 18 U.S.C. § 924(e)(2)(B). Contrary to Jones's argument, the statute need not contain the phrase "use of force" in order to qualify as a violent felony under the elements clause. Doc. 132 at 3-4. Under Reyes-Contreras, "'the knowing or intentional causation of bodily injury necessarily involves the use of physical force." 910 F.3d at 183 (quoting Castleman, 572 U.S. at 169). Thus, knowingly or intentionally threating or placing another person "in fear of bodily injury or death" necessarily involves the threated use of physical force. Texas Penal Code § 29.02(a)(2). This threat of force satisfies the "attempted use, or threatened use of physical force" required by the elements clause. 18 U.S.C. § 924(e)(2)(B).
The second question is whether the amount of force called for in the Texas statute satisfies the level of force required by the elements clause. The Court must look to Texas law to make this determination. Stokeling, 139 S. Ct. at 554-55 (looking to Florida law to identify the minimum amount of force required by state law for the crime of robbery). In Stokeling, the Court stated that Florida's robbery statute required more than offensive touching. 139 S. Ct. at 555. Similarly, Texas' robbery statute requires more than offensive touching or the threat of offensive touching. Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989), reversed on other grounds 828 S.W.2d 764 (1992) (stating that bodily injury required by Texas statute is broadly defined and "encompasses even relatively minor physical contacts so long as they constitute more than mere offensive touching"); Crawford v. State, 509 S.W.2d 582, 584 (Tex. Crim. App. 1974) (finding that offense of robbery requires "actual or threatened violence to the person antecedent to the robbery" and grabbing the victim, prying her hand open, and taking money is sufficient); Jones v. State, 467 S.W.2d 453, 454 (Tex. Crim. App. 1971) (holding that "[t]he mere snatching of money from another's hand is not robbery . . .").
Stokeling affirmed that "'physical force' means . . . 'force capable of causing physical pain or injury to another person'" and rejected the notion that Johnson established a higher bar. 139 S. Ct. at 553 (quoting Johnson, 559 U.S. at 140). The force need only present a potential of physical pain and injury. Id. Under Stokeling, the elements clause encompasses any robbery offense in which force capable of causing pain and injury is used or threatened in order to overcome the victim's resistance. Id. at 554. Robbery-by-threat in Texas, which requires the threatened use of physical force necessary to place a person in fear of bodily injury or death, certainly
meets this definition of force. Lane, 763 S.W.2d at 787 (holding that "so long as the 'violence' is clearly perpetrated against another 'for the purpose of . . . preventing or overcoming resistance to theft,' it does not serve the legislative intent to engage in fine distinctions as to degree or character of the physical force exerted").R. & R. at 12-21, ECF No. 133.
The same is true of robbery-by-force under Texas Penal Code § 29.02(a)(1). The analysis is the same as that shown above except that conviction under § 29.02(a)(1) requires the defendant commit theft by "intentionally, knowingly, or recklessly causing bodily injury to another" as opposed to threatening bodily injury or death. Under Reyes-Contreras, causing bodily injury necessarily entails force. 910 F.3d at 183-84. Under Texas law, the amount of force necessary to commit robbery requires resistance by the victim that is overcome by the defendant. Lane, 763 S.W.2d at 787. A conviction for such a robbery offense qualifies as a predicate violent felony under the elements clause of the ACCA. Stokeling, 139 S. Ct. at 550.
In conclusion, threatening or using force is an element of robbery in Texas. Jones's 1981 conviction for robbery under Tex. Penal Code § 29.01(a) is, therefore, a predicate offense under the elements clause of the ACCA. Thus, the Court must deny § 2255 relief.
Jones argues that robbery is not a violent felony because "[u]nder the ACCA, robbery is not enumerated as a predicate offense." Suppl. Br. at 8, ECF No. 131. That is correct. Robbery is not listed in the enumerated clause of the ACCA. The relevant issue, however, is whether robbery is a predicate offense under the elements clause of the ACCA.
These documents are referred to as Shepard documents. Shepard v. United States, 544 U.S. 13, 26 (2005) (finding that courts using the modified categorical approach can examine "the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or . . . some comparable judicial record of this information").
This Sentencing Guideline is not part of the ACCA. But, because of the similarities between "crime of violence" shown in the Guideline and "violent felony" shown in the ACCA, courts often treat the two interchangeably. Burris, 896 F.3d at 325 n.24; Reyes-Contreras, 910 F.3d at 174 n.6.
The Eighth Circuit cited the same Texas statute that is at issue in this case: Tex. Penal Code § 29.02. --------
Two days after the Report and Recommendation was filed, however, the Eleventh Circuit decided Moss. The Eleventh Circuit held that "[t]o qualify as a violent felony under the elements clause, a conviction must be predicated on the intentional use of physical force. 920 F.3d at 758 (emphasis in original) (citing United States v. Palomino Garcia, 606 F.3d 1317, 1334-36 (11th Cir. 2010)). According to the Texas Penal Code, a person commits robbery when "in the course of committing theft . . . and with the intent to obtain or maintain control of the property, he: (1) intentionally, knowingly, or recklessly causes bodily injury to another, or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death." Tex. Penal Code § 29.02(a) (emphasis added).
The government now concedes that under Moss, "a conviction for robbery under Texas law is not an elements clause-based ACCA predicate." Gov't Second Suppl. Resp. to the Def.'s Mot. Pursuant to 28 U.S.C. § 2255 at 2, ECF No. 136. Thus, the government acknowledges that "Jones's 1981 robbery conviction is not an ACCA predicate" and "Jones lacks three predicate convictions and is entitled to relief under Johnson v. United States." Id. at 4.
In light of Moss, and given that both parties agree Jones's 1981 Texas robbery conviction no longer qualifies as an ACCA predicate offense, the United States Magistrate Judge RECOMMENDS that the pending § 2255 motion be granted, that Jones's sentence be vacated, and that his case be remanded for resentencing without the application of the ACCA enhancement.
IV. EVIDENTIARY HEARING
There is no need for an evidentiary hearing in this case. With the exception of Claim One in his original petition, all of Jones's claims are untimely. He has not shown any entitlement to equitable tolling of the statute of limitations. "Section 2244 'does not require a hearing on the issue of time-bar or equitable tolling, so the decision as to whether to conduct an evidentiary inquiry is a matter left to the sound discretion of the district court.'" San Martin v. McNeil, 633 F.3d 1257, 1271 (11th Cir. 2011). Jones is not entitled to an evidentiary hearing regarding the time-bar or equitable tolling. He has neither alleged facts nor proffered any evidence to show he pursued his rights diligently and some extraordinary circumstance prevented him from timely raising his time-barred claims. Id. at 1272.
Additionally, there is no need for an evidentiary hearing in relation to Jones's timely-filed Johnson claim. The United States Magistrate Judge is recommending that relief be granted in relation to this claim. The government agrees to this and has "ask[ed] the Court grant the pending § 2255" motion. Gov't Second Suppl. Resp. to the Def.'s Mot. Pursuant to 28 U.S.C. § 2255 at 4, ECF No. 136.
V. CONCLUSION
It is RECOMMENDED that Jones's § 2255 motion be GRANTED, his sentence be VACATED, and his case be REMANDED for resentencing without the application of the ACCA enhancement. It is also RECOMMENDED that any request for an evidentiary hearing be DENIED.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, WITHIN FOURTEEN (14) DAYS after being served with a copy thereof. The District Judge will make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are further notified that, pursuant to Eleventh Circuit Rule 3-1,
[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper
objection, however, the court may review on appeal for plain error if necessary in the interests of justice.
SO RECOMMENDED, this 10th day of July, 2019.
/s/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE