United States District Court, N.D. West Virginia
January 10, 2017
ANDRE TURNER PRIMUS, Petitioner,
UNITED STATES OF AMERICA, Respondent. CRIMINAL ACTION No. 3:12-CR-24 (GROH)
ORDER ADOPTING REPORT AND RECOMMENDATION
M. GROH CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court for consideration of a Report and
Recommendation (“R&R”) issued by United
States Magistrate Judge Robert W. Trumble. Pursuant to this
Court's Local Rules, this action was referred to
Magistrate Judge Trumble for submission of an R&R. On
July 8, 2016, Magistrate Judge Trumble issued his R&R
finding the Supreme Court's decision in Johnson v.
United States, 135 S.Ct. 2551 (2015), inapplicable to
alter the Petitioner's career offender status and
recommending that this Court deny and dismiss his 28 U.S.C.
§ 2255 petition.
to 28 U.S.C. § 636(b)(1)(C), this Court is required to
review de novo those portions of the magistrate
judge's findings to which objection is made. However,
this Court is not required to review, under a de
novo or any other standard, the factual or legal
conclusions of the magistrate judge to which no objections
are made. Thomas v. Arn, 474 U.S. 140, 150 (1985).
Failure to file objections in a timely manner constitutes a
waiver of de novo review and a petitioner's
right to appeal this Court's Order. 28 U.S.C. §
636(b)(1)(C); Snyder v. Ridenour, 889 F.2d 1363,
1366 (4th Cir. 1989); United States v. Schronce, 727
F.2d 91, 94 (4th Cir. 1984). In this case, pursuant to 28
U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal
Rules of Civil Procedure, objections to Magistrate Judge
Trumble's R&R were due within fourteen days after
being served with a copy of the same. The Petitioner was
served with the R&R on July 13, 2016, and timely filed
objections. Accordingly, the Court will review de
novo those portions of the R&R to which the
Petitioner objects and the remainder of the R&R for clear
Petitioner argues that the Supreme Court's decision in
Johnson renders his career offender designation
under § 4B1.1 of the United States Sentencing Guidelines
unconstitutional. Specifically, he claims that his 1996 New
York conviction for first degree robbery is no longer
considered a crime of violence under § 4B1.2(a) and thus
cannot be considered a predicate offense for career offender
enhancement purposes. The Petitioner avers that without the
1996 robbery conviction, he no longer has the required number
of requisite offenses to qualify as a career offender under
the Guidelines and therefore must be resentenced.
November 10, 1995, the Petitioner was arrested in Brooklyn,
New York, for first degree robbery. On July 18, 1996, he pled
guilty and was sentenced to three to six years of
imprisonment. In 1995, a person was guilty of first degree
robbery in the state of New York if
he forcibly [stole] property and when, in the course of the
commission of the crime or of immediate flight therefrom, he
or another participant in the crime:
1. Cause[d] serious physical injury to any person who is not
a participant in the crime; or
2. [Was] armed with a deadly weapon; or
3. Use[d] or threaten[ed] the immediate use of a dangerous
4. Display[ed] what appear[ed] to be a pistol, revolver,
rifle, shotgun, machine gun or other firearm . . . .
N.Y. Penal Law § 160.15 (1995). In 1995, and today, the
offense of first degree robbery in New York requires, as an
element, the use of force. Therefore, the Defendant's
robbery conviction is considered a crime of violence under
the elements clause-not the residual clause-of §
Johnson, the Supreme Court declared the residual
clause of the Armed Career Criminal Act (“ACCA”)
void as unconstitutionally vague. 135 S.Ct. at 2557. The
ACCA's residual clause defines a “violent
felony” as any crime punishable by a term of
imprisonment in excess of one year that “involves
conduct that presents a serious potential risk of physical
injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii).
Prior to August 1, 2016, the residual clauses under the ACCA
and § 4B1.2(a)(2) of the Guidelines were identical.
Courts are currently split as to whether Johnson
applies to the residual clause in the Guidelines. In
Beckles v. United States, No. 15-8544, 136 S.Ct.
2510 (2016), the Supreme Court will determine this issue.
Johnson arguably could apply to invalidate the
Defendant's career offender enhancement if his robbery
conviction was labeled a crime of violence based upon §
4B1.2(a)'s residual clause. However, because the
Defendant's robbery conviction falls under the elements
clause of § 4B1.2(a),  Johnson is inapplicable.
See Mitchell v. United States, 15 Civ. 6379
(LGS), 2016 WL 1383511 (S.D.N.Y. Apr. 6, 2016). Furthermore,
in addition to the elements clause, at the time of the
Defendant's sentencing, the commentary of § 4B1.2(a)
listed robbery as a crime of violence. U.S.S.G. §
4B1.2(a) cmt. n.1 (2011). Moreover, the Guidelines were
recently amended to include robbery as an enumerated crime of
violence under § 4B1.2(a)(2).
careful review of the record, and finding no error,
is the opinion of this Court that Magistrate Judge
Trumble's Report and Recommendation [ECF No. 60 in
3:12-CR-24; ECF No. 5 in 3:16-CV-90] should be, and is,
hereby ORDERED ADOPTED. The Court ORDERS that the
Petitioner's § 2255 petition [ECF No. 55 in
3:12-CR-24; ECF No. 1 in 3:16-CV-90] is DENIED and DISMISSED.
Court ORDERS that the Petitioner's Motion for Appointment
of Counsel [ECF No. 64 in 3:12-CR-24] is DENIED as moot.
Court ORDERS the above-styled civil case STRICKEN from its
Clerk is DIRECTED to enter a separate judgment order in favor
of the Respondent.
independent examination of the record, the Court finds that
the Petitioner has failed to make “a substantial
showing of the denial of a constitutional right, ” and
therefore DENIES a certificate of appealability. See
28 U.S.C. § 2253(c)(2).
Clerk is DIRECTED to transmit copies of this Order to all
counsel of record and to mail a copy to the pro se
Petitioner by certified mail, return receipt requested.
 Unless otherwise noted, all citations
to docket numbers in this Order reference entries in the
above-styled criminal action.
 The elements clause of § 4B1.2(a)
defines a crime of violence as an offense punishable by a
term of imprisonment in excess of one year that “has as
an element the use, attempted use, or threatened use of
physical force against the person of another.” U.S.S.G.
 The Court is cognizant of the present
posture of United States v. Jones, 105 F.Supp.3d 233
(E.D.N.Y. 2015), which is the primary case cited in the
R&R. Following entry of the R&R, the Second Circuit
vacated and remanded the Jones decision. United
States v. Jones, 830 F.3d 142 (2d Cir. 2016). However,
the Second Circuit has since vacated its own decision and
ordered the appellee's petition for rehearing and for
rehearing en banc held in abeyance pending the Supreme
Court's decision in Beckles. United States
v. Jones, 838 F.3d 296 (2d Cir. 2016). The status of the
Jones case does not alter the Court's decision
in this matter.