Opinion
5:14-CR-00090-FL 5:19-CV-00303-FL
01-10-2020
Glen Allen Stewart, Jr., Petitioner, v. United States of America, Respondent.
MEMORANDUM & RECOMMENDATION
Robert T. Numbers, II United States Magistrate Judge
Petitioner Glen Allen Stewart, Jr., proceeding under 28 U.S.C. § 2255, seeks to vacate the 120-month sentence imposed after his conviction for possession of a firearm and ammunition by a felon. D.E. 181, 183. This is Stewart's third § 2255 motion, having failed to obtain relief on his previous two motions.
Stewart's voluntarily dismissed, without prejudice, his first 2255 motion. His second 2255 motion raised several issues, including unsuccessfully challenging a sentence enhancement under Johnson v. United States. 135 S.Ct. 2551 (2015).
Stewart claims he is entitled to relief for two reasons. First, Stewart claims the sentencing enhancement applied by the district court due to his criminal history is unconstitutional because his predicate offenses no longer qualify as crimes of violence after United States v. Davis, 139 S.Ct. 2319 (2019). Second, relying on Rehaif v. United States, 139 S.Ct. 2191 (2019), Stewart contends that the Government failed to prove that he fell into one of the categories of a person prohibited from possessing a firearm. The Government has moved to dismiss Stewart's motion. D.E. 192.
After reviewing the docket and the arguments of the parties, the undersigned finds that Stewart is not entitled to the relief he seeks because the record does not support his arguments. The undersigned thus recommends that the court deny Stewart's Motion to Vacate and Amended Motion to Vacate (D.E. 181, 183) and grant the Government's Motion to Dismiss (D.E. 192).
The district court referred this matter to the undersigned United States Magistrate Judge for the entry of a memorandum and recommendation under 28 U.S.C. § 636(b)(1).
I. Background
In December 2013, police officers stopped a vehicle Stewart was driving because it had an expired tag. D.E. 120 at 12-13. Officers observed the butt of an extended magazine sticking out from the front center console, which law enforcement later determined was loaded. Id. at 25, 7071, 91-92. They also found a regular-size magazine clip and 50 rounds of ammunition in the car. Id. at 25.
At trial, Stewart's aunt, who owned the car, testified that she stored a firearm in the closed console of the vehicle. Id. at 135-38. She also stated that the gun had a normal-size magazine clip and no ammunition, other than what was loaded in the firearm, was in the vehicle. Id.
Stewart's criminal history contains several offenses involving firearms. See D.E. 103. His convictions include using a firearm to commit armed robbery (2006), id. at ¶ 7; possession of a weapon of mass destruction (sawed off shotgun) and possession of a firearm by a felon (2008), id. at ¶¶ 10, 12; and felon in possession of a firearm, assault inflicting serious injury, and drug trafficking charges (2011), id. at ¶¶ 13-15. Stewart's served over one year in prison on the 2011 charges. Id. at ¶¶ 12-15.
In May 2014, a federal grand jury indicted Stewart on one count of being a felon in possession of of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g) and 924. D.E. 1. Following a three-day trial in October 2014, a jury found Stewart guilty. D.E. 87.
Three months later, the court sentenced Stewart to 120 months in prison. D.E. 109. As part of the Presentence Investigative Report, the United States Probation Office recommended that he be assigned a base offense level of 26 under §2K2.1(a)(1) because, among other things, the firearm he possessed had an extended magazine and he had at least two prior felony convictions for crimes of violence or controlled substance offenses. D.E. 103 at 10. The definition of a crime of violence for purposes of §2K2.1(a)(1) at the time of Stewart's sentencing included an offense punishable by more than one year in prison that “involves conduct that presents a serious potential risk of physical injury to another.” U.S. Sentencing Guidelines Manual §§ 2K2.1 cmt. n.1 & 4B1.2(a)(2) (U.S. Sentencing Comm'n 2014). If Stewart did not have two or more prior convictions for crimes of violence, he would have been assigned a lower base offense level. Id. § 2K2.1.
This definition has since been removed from the Sentencing Guidelines.
The Fourth Circuit Court of Appeals affirmed Stewart's conviction and sentence. United States v. Stewart, 628 Fed.Appx. 179 (4th Cir. 2015); D.E. 125. And the Supreme Court denied Stewart's writ of certiorari. Stewart v. United States, 136 S.Ct. 1227 (2016).
In August 2015, Stewart filed his first motion to vacate pursuant to 28 U.S.C. § 2255. D.E. 131, 133. Eight months later, he voluntarily dismissed the motion, without prejudice. D.E. 145, 147.
Stewart filed his second § 2255 motion in June 2016, alleging ineffective assistance of counsel and prosecutorial misconduct, and challenging his career offender status under Johnson v. United States, 135 S.Ct. 2551 (2015). The court denied all of Stewart's claims. D.E. 170.
Stewart filed the present § 2255 motion in July 2019 and amended the motion later that month. D.E. 181, 183.
II. Analysis
A. Standard of Review for § 2255 Petitions
To prevail on his Motion to Vacate, Stewart must show that (1) the district court imposed a sentence that violated the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; or (3) that his sentence exceeded the maximum authorized by law. 28 U.S.C. § 2255(a). “Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall ... grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law” about the petitioner's motion. 28 U.S.C. § 2255(b). But ultimately, the petitioner must establish that he is entitled to relief by a preponderance of the evidence. See, e.g., Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958) (per curiam).
The Federal Rules of Civil Procedure apply to a § 2255 motion only if they do not conflict with any other statutory provisions or the procedural rules specifically applicable to § 2255 motions. Rules Governing Section 2255 Proceedings, Rule 12. The court will apply the standard for Rule 12(b)(6) motions in considering the motion to dismiss because there is no conflict between the rule and the provision mentioned in the prior sentence.
The Supreme Court has explained that to withstand a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Thus, while a court must accept all the factual allegations in a complaint as true, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice.” Id. The court may also consider documents in the public record, Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009), and in the context of a § 2255 motion, “the files and records of the case[, ]” 28 U.S.C. § 2255(b).
After Iqbal, a court considering a motion under Rule 12(b)(6) must subject a complaint to a two-part test. First, the court must identify the allegations in the complaint that are not entitled to the assumption of truth because they are conclusory or just a formulaic recitation of the elements of a claim. Iqbal, 556 U.S. at 679. Then, taking the remaining factual allegations as true, the court must determine whether the complaint “plausibly suggest[s] an entitlement to relief.” Id. If, after conducting this two-part analysis, “the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not ‘shown' - ‘that the pleader is entitled to relief'” Id. If a party fails to show that they are entitled to relief, the court must dismiss the deficient claims.
B. Sentencing Enhancement
Stewart's first claim takes a new approach to an old argument. In his second § 2255 petition, Stewart argued that his sentencing enhancement under §2K2.1 of the United States Sentencing Guidelines for commission of previous crimes of violence was invalid after the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551, 2563 (2015). In Johnson, the Supreme Court held that the residual clause of the Armed Career Criminal Act's definition of a crime of violence was unconstitutionally vague. Id. at 2563. When the court sentenced Stewart, § 2K2.1 of the Sentencing Guidelines relied on the definition of a crime of violence in §4B1.2(a), which contained a residual clause like the one struck down in Johnson.
The court rejected Stewart's claim based on the Supreme Court's later decision in Beckles v United States, 137 S.Ct. 888 (2017). Beckles held that even after Johnson, “the advisory Sentencing Guidelines are not subject to a vagueness challenge ... and that § 4B1.2(a)'s residual clause is not void for vagueness.” Id. at 895. This opinion foreclosed Stewart's attempt to attack his sentencing enhancement as void for vagueness. D.E. 170 at 13-14.
Fast forward to the Supreme Court's 2019 decision in United States v. Davis, 139 S.Ct. 2319 (2019). In Davis, a criminal defendant claimed that the residual clause in 18 U.S.C. § 924(c)(B) was impermissibly vague. Id. at 2366. The Supreme Court agreed and declared the residual clause in §924(c)(B) to be unconstitutional.
With Davis in hand, Stewart returns to this court claiming that he has a right to be resentenced. D.E. 181 at 1-2 & 183 at 4. He argues that after Davis, his prior convictions for possession of a weapon of mass destruction and assault cannot satisfy definition of a crime of violence in §4B1.2(a). Thus, Stewart maintains, he should not have received a sentencing enhancement.
But while Davis rendered § 924(c)(B)'s residual clause unconstitutional, it did nothing to undermine Beckles. And as noted above, the Supreme Court held that the Sentencing Guidelines in general, and §4B1.2(a) in particular, are not subject to a vagueness challenge. They are immune from such a challenge because they do not define a criminal offense or “fix the permissible range of sentences. To the contrary, they merely guide the exercise of a court's discretion in choosing an appropriate sentence within the statutory range.” Beckels, 137 S.Ct. at 892. Thus, because Davis does not provide a basis to attack his sentencing enhancement, the district court should dismiss this claim.
C. Rehaif v. United States
Stewart also challenges his 2014 felon in possession of a firearm conviction and the sentence imposed based on the decision in Rehaif v. United States. 139 S.Ct. 2191 (2019). Because his prior convictions impacted the guidelines range used to determine his current sentence, he seeks to have his sentence vacated and be resentenced. The Government contends that his Rehaif claim is barred because it is a second or successive petition and fails to state a claim for relief.
In Rehaif, the defendant was convicted under § 922(g)(5) for possessing a firearm while being an alien illegally or unlawfully in the United States. 139 S.Ct. 2191. The Supreme Court held that the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm. Id. at 2195. Based on this ruling, Stewart contends that his conviction is invalid because the government did not prove “scienter” and cannot do so because he did not know he was barred from carrying firearm.
The Government contends that the court lacks subject matter jurisdiction to consider the Rehaif claim because it is part of a second or successive § 2255 petition. Before filing a second or successive petition, “the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). This court dismissed Stewart's previous 2255 motion and denied a certificate of appealability. See D.E. 170. Stewart's latest motions continue to attack his conviction and sentence. The undersigned agrees with the Government that this is a second or successive petition and Stuart has not received permission from the Court of Appeals to pursue it.
Nor can Stewart rely on any of the exceptions to the bar on filing a second or successive petition. Rehaif did not announce a new rule of constitutional law but clarified the requirements of 18 U.S.C. § 922(g) and 924(a)(2) . See In re Palacios, No. 19-12571-G, 2019 WL 3436454, at *1 (11th Cir. July 30, 2019) (holding that Rehaif did not announce a new rule of constitutional law). And the Supreme Court did not make Rehaif retroactive to cases on collateral review. Id.; In re Wright, __ F.3d __, 2019 WL 5800218, at *2 (11th Cir. Nov. 7, 2019).
Thus, this court lacks subject-matter jurisdiction to consider his Rehaif. See, e.g., 28 U.S.C. § 2255(h); Burton v. Stewart, 549 U.S. 147, 152-53 (2007) (per curiam); In re Williams, 364 F.3d 235, 238 (4th Cir. 2004); United States v. Winestock, 340 F.3d 200, 205 (4th Cir. 2003). So the undersigned recommends that the court dismiss this claim.
But even if the court had jurisdiction, it would still be appropriate to dismiss it. Stewart has procedurally defaulted this issue by failing to raise it in his direct appeal. See Massarro v. United States, 538 U.S. 500, 504 (2003) (noting that generally “claims not raised on direct appeal may not be raised on collateral review” and are thus procedurally defaulted). The court may only excuse a procedural default when a petitioner shows “cause and actual prejudice” or “actual innocence, “ Bousley v. United States, 523 U.S. 614, 622 (1998). But Stewart has neither alleged nor established facts that would excuse his procedural default.
What is more, Stewart's Rehaif claim fails on the merits because of the factual distinctions between the two cases. In Rehaif the defendant's conviction stemmed from possessing a firearm while being an alien illegally or unlawfully in the United States, not for being a felon in possession of a firearm as Stewart was here. In analyzing Rehaif's conviction under § 922(g)(5), the Supreme Court explicitly stated that it “express[ed] no view ... about what precisely the Government must prove to establish a defendant's knowledge of status in respect to other § 922(g) provisions not at issue here.” Id. at 2200.
Other courts have concluded that the Rehaif does not impact convictions for felons in possession cases. “Rehaif does not hold that the government was required to prove that [a defendant] knew that he was prohibited from possessing a firearm to sustain a conviction under Section 922(g)(1).” Allen v. United States, No. 1:15-CR-64-MOC-WCM-1, 2019 WL 6359164, at *4 (W.D. N.C. Nov. 27, 2019) (quoting Webster v. Streeval, No. 0:19-111-HRW, 2019 WL 5848060, at *3 (E.D. Ky. Nov. 7, 2019), and United States v. Briscoe, No. 18-10031-EFM, 2019 WL 5549165, at *2 (D. Kan. Oct. 28, 2019)).
Finding that Rehaif provides no relief to Stewart, the undersigned recommends that court deny his motion on this issue.
III. Conclusion
For these reasons, the undersigned recommends that the court deny Stewart's Motion to Vacate (D.E. 181) and Amended Motion to vacate (D.E. 183) and grant the Government's Motion to Dismiss (D.E. 192).
The Clerk of Court must serve a copy of this Memorandum and Recommendation (“M&R”) on each party who has appeared here. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals.