Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Riggleman v. United States

United States District Court, S.D. West Virginia, Beckley Division

April 6, 2018

ELISHA RIGGLEMAN, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          PROPOSED FINDINGS AND RECOMMENDATION

          Omar J. Aboulhosn, United States Magistrate Judge.

         Pending before the Court are the following: (1) Movant's Motion to Vacate, Set Aside, or Correct Sentence by A Person in Federal Custody Pursuant to 28 U.S.C. § 2255 and Amended Section 2255 Motions (Document No. 422, 423, 426, 437, 455, 486), filed on January 21, 2014, January 31, 2014, March 7, 2014, October 23, 2015, February 22, 2017; (2) Movant's pro se Motions for Default Judgment (Document Nos. 442 and 443) filed on May 5, 2014 and July 11, 2014; and (3) Movant's pro se Motion for Voluntary Dismissal (Document No. 496). By Standing Order, this matter was referred to United States Magistrate Judge R. Clarke VanDervort for submission of proposed findings of fact and a recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). (Document No. 212.) By Order entered on January 6, 2016, the above case was referred to the undersigned United States Magistrate Judge for submission of proposed findings of fact and a recommendation for deposition pursuant to 28 U.S.C. § 636(b)(1)(B). (Document No. 223.)

         FACTUAL AND PROCEDURAL BACKGROUND

         A Criminal Action No. 5:11-00124:

         By Indictment filed on May 24, 2011, Movant was charged with one count of threatening to kidnap and assault a Federal Bureau of Prisons law enforcement officer in violation of 18 U.S.C. § 115(a)(1)(B) (Count One); and one count of threatening to murder and assault the wife and child of the officer in violation of 18 U.S.C. § 115(a)(1)(A) (Count Two). (Criminal Action No. 5:11-00124, Document No. 1.) On June 7, 2011, Movant appeared in person and by appointed counsel, Richard M. Gunnoe, for his Initial Appearance, Arraignment, and Detention Hearing. (Id., Document Nos. 9 and 10.) On June 6, 2011, Movant, by counsel, filed a Motion to Determine Mental Capacity and a “Motion to Continue Motion Deadlines and Trial Date.” (Document Nos. 18 and 19.) By Order entered on July 7, 2011, United States District Judge Irene C. Berger granted Movant's “Motion to Continue Motion Deadlines and Trial Date.” (Id., Document No. 22.) On July 13, 2011, United States Magistrate Judge R. Clarke VanDervort conducted a hearing on Movant's Motion to Determine Mental Capacity. (Id., Document No. 25.) Prior to consideration of the Motion to Determine Mental Capacity, Mr. Gunnoe presented to the Court Movant's pro se Motion to Appoint New Counsel and requested to withdraw a counsel. (Id., Document Nos. 24 and 26.) Magistrate Judge VanDervort granted the Motions to Withdraw as Counsel and to Appoint New Counsel, ordered that Kimberly G. Mann be appointed as new counsel, and ordered that the Motion to Determine Mental Capacity be held in abeyance. (Id., Document No. 26.)

         On August 17, 2011, Movant filed his pro se Motion for Appointment of New Counsel regarding Ms. Mann and a Motion to Recuse or Dismiss Debbie Stevens as the Special Assistant United States Attorney [“SAUSA”]. (Id., Document Nos. 39 and 40.) On August 18, 2011, Movant filed his second pro se Motion for Appointment of New Counsel regarding Ms. Mann. (Id., Document No. 41.) Magistrate Judge VanDervort conducted a hearing on the above Motions on August 23, 2011. (Id., Document Nos. 42, 43, and 44.) During the hearing, Ms. Mann noted that Movant had expressed at least six complaint concerning her ability to represent him and she believe the attorney-client relationship had deteriorated to the point that it would be difficult for her to represent him. (Id., Document No. 44.) Magistrate Judge VanDervort granted Movant's Motions for Appointment of New Counsel and directed the Supervising CJA Panel Attorney to reassign the case to another member the Criminal Justice Act Panel of Attorneys. (Id.) Finally, Magistrate Judge VanDervort denied Movant's Motion to Recuse Special Assistant United States Attorney Debbie Stevens after explaining to Movant that Ms. Stevens is fully authorized to act as a Special Assistant United States Attorney. (Id.)

         On August 24, 2011, S. Mason Preston was appointed as counsel for Movant. (Id., Document No. 46.) On August 29, 2011 and September 9, 2011, Movant filed pro se Motions to Recuse Special Assistant United States Attorney Debbie Stevens (Document No. 28 and 61) and a Motion to Expedite Motion to Recuse Special Assistant United States Attorney Debbie Stevens (Document No. 47). On September 13, 2011, Magistrate Judge VanDervort conducted a hearing on Movant's Motion to Determine Mental Capacity of Defendant, the United States' Motion for Protective Order, and Movant's pro se Motions. (Document No. 63.) By Order entered on September 13, 2011, Magistrate Judge VanDervort granted Movant's Motion to Determine Mental Capacity (Document No. 18), denied as moot the United States' Motion for Protective Order (Document No. 32), denied Movant's pro se Motions to Recuse Special Assistant United States Attorney Debbie Stevens (Document No. 48 and 61), and denied as moot Movant's pro se Motion to Expedite (Document No. 47). (Id., Document No. 63.) On September 21, 2011, Movant filed his pro se “Motion to Appeal to District Judge Motion to Recuse AUSA.” (Id., Document No. 67.) On September 22, 2011, Movant filed his pro se Motion for Ineffective Assistance of Counsel arguing that Mr. Preston did not adequately represent him during the hearing conducted on September 13, 2011. (Id., Document No. 68.) On September 29, 2011, Movant, by counsel, filed a “Motion for Continuance.” (Id., Document No. 69.) By Order entered on October 3, 2011, District Judge Berger granted Movant's “Motion for Continuance.” (Id., Document No. 70.) By Memorandum Opinion and Order entered on October 11, 2011, District Judge Berger denied Movant's pro se Motion for Ineffective Assistance of Counsel after reviewing the record and determining that “Mr. Preston's performance was well above any objective standard of reasonableness.” (Id., Document No. 71.)

         On October 19, 2011, Movant filed the following pro se Motions: (1) Motion for Transcripts; (2) “Petition to Waive Mental Status Examination and Go Forth with Trial;” (3) Motion to Appoint New Counsel; and (4) “Motion for Franks Hearing.” (Id., Document Nos. 75, 76, 78, and 79). By Order entered on October 25, 2011, Magistrate Judge VanDervort denied Movant's above pro se Motions after finding that Movant was “well represented by his current and third court-appointed attorney” and “Defendant has neither requested, nor received, permission to proceed pro se.” (Id., Document No. 82.) Between October 31, 2011 and November 9, 2011, Movant filed the following pro se Motions: (1) Motion to Dismiss Indictment; (2) Motion to Present Respective Witness List; (3) Motion to Challenge the Veracity of Indictment; and (4) Motion to Appoint New Counsel. (Id., Document Nos. 86, 87, 91, and 92.) By Order entered on November 21, 2011, Magistrate Judge VanDervort denied Movant's pro se Motions to Dismiss Indictment, Motion to Present Respective Witness List, and Motion to Challenge the Veracity of the Indictment. (Id., Document No. 94.) Magistrate Judge VanDervort noted that the Court would consider Movant's pro se Motion to Appoint New Counsel (Document No. 92) upon completion of Movant's mental capacity evaluation. (Id.) Between December 13, 2011 and December 19, 2011, Movant filed the following pro se Motions: (1) “Motion for Injunction;” (2) “Motion for a Neutral Independent Source for a Forensic Psychological Evaluation;” (3) “Motion for Second Opinion of the Psychological Evaluation due to Conflict and Personal Interest of the Psychologist;” (4) “Motion for Return of Personal Property;” and (5) “Motion for Second Independent Psychological Evaluation.” (Id., Document Nos. 95 - 99.) By Order entered on December 20, 2011, Magistrate Judge VanDervort denied Movant's pro se Motions. (Id., Document No. 101).

         By a six-count Superseding Indictment filed on December 20, 2011, Movant was charged with violating 18 U.S.C. § 115(a)(1)(A) and (B) as charged in Counts One and Two of the initial Indictment and further charging Defendant with disseminating and threatening to disseminate information that a witness was cooperating with the government in violation of 18 U.S.C. 1512(b)(1) (Count Three) and attempting to influence three witnesses to testify falsely in violation of 18 U.S.C. § 1512(b)(1) (Counts Four through Six). (Id., Document No. 102.) Movant's arraignment on the Superseding Indictment was conducted on February 7, 2012. (Id., Document Nos. 112 - 114.) A seven-count Second Superseding Indictment was filed on March 20, 2012, charging Movant as charged in Counts One and Two of the initial and Superseding Indictments, changing the statutory provision violated in Count Three to 18 U.S.C. § 1512(a)(2)(A) and charging four counts of conduct in violation of 18 U.S.C. 1512(b)(1). (Id., Document No. 122.) Movant's arraignment on the Second Superseding Indictment was conducted on April 3, 2012. (Id., Document Nos. 126 and 127.)

         On April 24 and 25, 2012, Movant filed a pro se Motion to Appoint New Counsel and Recusal SAUSA Stevens. (Id., Document No. 135.) In support of his request for new counsel, Movant stated that Mr. Preston was not acting “zealously about his defense” and he “can't trust or have faith in [Mr. Preston's] representation.” (Id.) By Order entered on April 25, 2012, Magistrate Judge VanDervort denied Movant's above pro se Motions. (Id., Document No. 138.) Specifically, Judge VanDervort noted that Movant failed to show good cause for the appointment of new counsel, Movant was well represented by current counsel, and the case was on its fifth trial date. (Id.) On April 25, 2012, Movant filed a pro se “Motion for Dismissal of Indictment or for Discovery of All Incidents Written on Inmates for Threats at FCI Beckley 203 Rule Violation and for Proof of Legality of Special AUSA.” (Id., Document No. 137.) On April 27, 2012, the United States filed a “Motion to Exclude the Defendant's Assertion of an Insanity Defense and Exclude the Introduction of Evidence Pertaining to Diminished Capacity of the Defendant to Control or Reflect Adequately upon the Consequences or Nature of his Actions.” (Id., Document No. 143.) By Order entered on May 1, 2012, District Judge Berger denied Movant's pro se “Motion to Appeal Magistrate Judge's Decisions on Motion to Expedite and Motion to Recuse Assistance U.S. Attorney Debbie Stevens” (Document No. 55), “Motion to Appeal to District Judge Motion to Recuse AUSA” (Document No. 67), “Motion for Dismissal of Indictment or for Discovery of all Indictments Written on Inmates for Threats at FCI Beckley and for Proof of Legality of Special AUSA” (Document No. 137). (Id., Document No. 148.)

         On May 2, 2012, District Judge Berger conducted a hearing on the United States' “Notice of Intent to Introduce Certain Evidence at Trial (Document No. 128) and “Motion to Exclude the Defendant's Assertion of an Insanity Defense and to Exclude the Introduction of Evidence Pertaining to the Diminished capacity of the Defendant to Control or Reflect Adequately upon the Consequences of Nature of his Actions” (Document No. 143). (Id., Document Nos. 144 and 150.) During the hearing, Movant, by counsel made an oral Motion for an Independent Mental Examination. (Id., Document No. 162.) On May 9, 2012, Movant filed a pro se “Motion to Object to the Denying of the Recusal of Special Counsel to the Government” and a pro se “Motion for Special AUSA to Provide to Defendant as Part of Discovery as to Why a Special AUSA was Appointed in this Case.” (Id., Document Nos. 153 and 154.) By Order entered on May 10, 2012, District Judge Berger denied Movant's foregoing pro se Motions. (Id., Document No. 156.) On May 15, 2012, Movant filed a pro se “Motion to Recuse Counsel and to Represent Pro se with Stand-by Counsel Appointed.” (Id., Document No. 157.) On May 17, 2012, Movant filed a pro se Motion for FOIA Request. (Id., Document No. 158.) By Order entered on May 21, 2012, District Judge Berger (1) granted the United States' “Notice of Intent to Introduce Certain Evidence at Trial” to the extent the evidence would be used a rebuttal evidence (Document No. 128), (2) granted Movant's oral Motion for an Independent Mental Examination, and (3) held in abeyance the United States' “Motion to Exclude the Defendant's Assertion of an Insanity Defense and to Exclude the Introduction of Evidence Pertaining to the Diminished capacity of the Defendant to Control or Reflect Adequately upon the Consequences of Nature of his Actions” (Document No. 143). (Id., Document No. 162.) In granting Movant's Motion for an Independent Mental Examination, Judge Berger specifically ordered as follows:

The Court ORDERS that the Defendant be examined by an independent psychologist and/or psychiatrist for purposes of determining criminal responsibility at the time of the alleged offense(s). Specifically, the Court ORDERS that the examiner assess whether or not there is any mental disease or defect which would preclude the Defendant from being able to formulate the necessary intent required to commit the crimes alleged in the Second Superseding Indictment.

(Id.)

         By Orders entered on June 4, 2012, Magistrate Judge VanDervort denied Movant's pro se “Motion to Recuse Counsel and to Represent Pro se with Stand-by Counsel Appointed” (Document No. 157) and pro se Motion for FOIA Request (Document No. 158). (Id., Document Nos. 168 and 169.) In denying his pro se “Motion to Recuse Counsel and to Represent Pro se with Stand-by Counsel Appointed, ” Magistrate Judge VanDervort noted that Movant was currently awaiting an independent mental examination and the Court could not “find that Defendant has knowingly, intelligently, and voluntary waived his right to counsel.” (Id., Document No. 168.) On June 8, 2012, District Judge Berger conducted a Status Conference to address the status of the previously ordered independent psychological/psychiatric evaluation. (Id., Document No. 180.) Based upon representations made during the hearing, District Judge Berger ordered that Movant be transported by the USMS on June 18, 2012, to the South Central Regional Jail for an independent examination to be performed by Dr. Ralph Smith and employees of Charleston Psychiatric Group. (Id.) Finally, District Judge Berger ordered defense counsel to immediately notify the Court upon completion of the independent exam. (Id.)

         Between June 20, 2012 and August 1, 2012, Movant filed the following pro se Motions: (1) “Petition for Motion that My Attorney File a Motion for Rough Notes of the Investigating Agent & All Background History of Any and All Expert Witnesses Used by the Gov. as Chief at Trial;” (2) “Motion to Obtain Knowledge of Rather or Not this Petitioner Waived His Right to a Speedy Trial;” (3) “Motion to Hold the Above Styled Case in Abeyance Pending the Outcome of Docket No. 12-1652 of the United States Supreme Court of Appeals for the Fourth Circuit;” (4) “Motion for Special Counsel for the Government to Provide to Defendant and to This Court a Brief that Reflects the Appointment of Special Counsel;” (5) “Motion for this Court to Stop the Tampering with this Petitioner's Mail and Legal Mail;” (6) “Motion to Review Discovery Before Trial and Pretrial Motions are Submitted;” and (7) “Motion for Subpoena/Summons.” (Id., Document Nos. 183-86, and 195-97.) By Order entered on August 2, 2012, Magistrate Judge VanDervort denied the foregoing pro se Motions. (Id., Document No. 198.)

         By unpublished opinion entered on July 23, 2012, the Fourth Circuit Court of Appeals denied Movant's petition for writ of mandamus seeking an order directing that SAUSA Stevens be recused. (Id., Document Nos. 187, 188, 189.) By Order entered on July 30, 2012, District Judge Berger direct the parties to notify the Court of the status of the independent exam. (Id., Document No. 190.) On the same day, the United States responded that Movant returned to FCI Beckley on July 18, 2012, but the Government had not received a report of the findings of the independent examination. (Id., Document No. 191.) Between August 8, 2012 and August 15, 2012, Movant filed the following pro se Motions: (1) “Motion for Discovery Documents;” (2) “Motion for Issuance of Subpoenas;” (3) “Motion for the Government to Disclose a Timely Disclosure of the Following Brady Material;” (4) “Motion for Disclosure;” and (5) “Motion for FOIA Disclosure.” (Id., Document Nos. 200-04.) On August 13, 2012, Charleston Psychiatric Group prepared its independent evaluation report concerning Movant. (Id., Document No. 210.) By Order entered on August 16, 2012, Magistrate Judge VanDervort denied Movant's foregoing pro se Motions. (Id., Document No. 206.) By Order entered on August 20, 2012, District Judge Berger granted the United States' “Motion to Exclude the Defendant's Assertion of an Insanity Defense and to Exclude the Introduction of Evidence Pertaining to the Diminished Capacity of the Defendant to Control or Reflect Adequately upon the Consequences or Nature of his Actions (Document No. 143). (Id., Document No. 211.)

         On August 16, 2012, the United States filed a “Motion for an Anonymous Jury.” (Id., Document No. 207.) In support, the United States noted the following: (1) Movant's multiple attempts to interfere with the judicial process by seeking the injury and/or death of witnesses/victims, offering of bribes to have harm carried out, and offering bribes to witnesses to testify falsely; (2) Movant's criminal history including convictions for mailing threatening communications; (3) The fact that the statutory maximum sentence in the case exceeds 100 years; and (4) A measure of security is warranted to protect the jurors' names, home addresses, and work addresses. (Id.) On August 21, 2012, Movant, by counsel, filed his Response stating no objection to keeping the identity of the jurors concealed, but requesting that Movant be provided with background information on each potential juror and that the jury panel not be informed of the reason for the anonymous jury. (Id., Document No. 212.) By Order entered on August 21, 2012, District Judge Berger granted the United States' “Motion for Anonymous Jury.” (Id., Document No. 213.) Specifically, District Judge Berger directed as follows:

The Court DIRECTS the Clerk to redact the name, address, place of employment, and other personally identifiable information from the jury questionnaires. However, the city of residence, occupation, age, sex, marital status and other information, which does not disclose the identity or potential location of the juror(s) or members of their families, shall not be redacted from the jury questionnaires. Finally, the Court ORDERS that neither the Clerk nor any other party inform the jury panel of the reason for the anonymous jury.

(Id.)

         On August 24, 2012, Movant filed a pro se Motion for Continuance of Trial and Motion for Appointment of Counsel. (Id., Document Nos. 215 and 216.) On August 27, 2012, Movant appeared in person and by counsel, Mr. Preston, for trial as previously scheduled in the case. (Id., Document Nos. 218 - 220.) Mr. Preston, however, advised the Court of medical issues and requested that he be removed as counsel. (Id.) District Judge Berger granted Mr. Preston's oral Motion to Withdraw, ordered that Movant's trial be continued, and directed the Supervising CJA Panel Attorney to reassign this case to another member of the CJA Panel. (Id.) By Order entered the same day, District Judge Berger denied as moot Movant's pro se Motion for Continuance of Trial and Motion for Appointment of Counsel (Document Nos. 215 and 216). (Id., Document No. 221.) On September 4, 2012, Gregory J. Campbell was appointed as counsel. (Id., Document No. 224.)

         On September 10, 2012, Movant filed a pro se Motion for Judicial Review of FOIA. (Id., Document No. 225.) On September 13, 2012, Movant filed a pro se Motion to have New Appointed Attorney File Pretrial Motions and Suppression/Impeachment Motions. (Id., Document No. 227.) Movant, by counsel, filed a Motion to Continue Trial on September 26, 2012, which was granted by the District Court on September 27, 2012. (Id., Document Nos. 229 and 230.) On November 28, 2012, Movant filed a pro se Motion for Recusal of Debbie Stevens as Special United States Attorney and a pro se Motion to Appoint New Counsel. (Id., Document Nos. 234 and 235.) As grounds for his request for the appointment of new counsel, Movant complained the Mr. Campbell refused to seek the recusal of SAUSA Debbie Stevens. (Id.) On November 28, 2012, Movant filed in the Fourth Circuit a Petition for Writ of Prohibition requesting that the above criminal proceedings be dismissed or that a new Special Assistant United States Attorney be appointed. (Id., Document No. 237.) By Order entered on November 29, 2012, Magistrate Judge VanDervort denied Movant's pro se Motion for Recusal of Debbie Stevens as Special United States Attorney and his pro se Motion to Appoint New Counsel. (Id., Document No. 241.)

         On December 13, 2012, Movant filed the following pro se Motions: (1) Motion to Dismiss Indictment for Violation of the Federal Speedy Trial Act (Document No. 247); (2) Motion to Continue Trial (Document No. 248); and (3) Motion to Recuse Magistrate Judge VanDervort (Document No. 249). On December 18, 2012, Movant filed a pro se letter-form Motion to Disqualify Special AUSA Stevens. (Id., Document No. 252.) By Order entered the same day, Magistrate Judge VanDervort scheduled a hearing on the Motion after noting that he had repeatedly received letters and motions from Movant insisting that SAUSA Debbie Stevens was not qualified and does not have authority to represent the United States in prosecuting him. (Id., Document No. 251.) By Order entered on December 19, 2012, District Judge Berger denied Movant's pro se Motion to Dismiss Indictment for Violation of the Federal Speedy Trial Act (Document No. 247), Motion to Continue Trial (Document No. 248), Motion to Recuse Magistrate Judge VanDervort (Document No. 249). (Id., Document No. 253.) On December 27, 2012, Mr. Campbell filed a Motion to Adopt certain pro se Motions filed by Movant. (Id., Document No. 254.) On January 3, 2013, Movant filed a pro se “Motion to Suppress All Evidence Put Together by (SAUSA) Debbie H. Stevens.” (Id., Document No. 258.) On January 8, 2013, Mr. Campbell filed a Second Motion to Adopt certain portions of Movant's pro se “Motion to Suppress All Evidence Put Together by (SAUSA) Debbie H. Stevens.” (Id., Document No. 270.) On January 8, 2013, Magistrate Judge VanDervort conducted a hearing on Movant's pending Motions concerning the alleged improper prosecution of Movant by SAUSA Stevens. (Id., Document No. 272.) By Memorandum Opinion and Order entered on January 9, 2013, Magistrate Judge VanDervort determined that Ms. Stevens was qualified to represent the United States in the underlying criminal proceedings. (Id., Document No. 271.) Magistrate Judge VanDervort further noted that the Office of the United States Attorney had filed documents evidencing Ms. Stevens appointed as a Special Assistant United States Attorney for the period of time from March 20, 2004, through March 15, 2013. (Id., Document Nos. 256 and 271.) Accordingly, Magistrate Judge VanDervort denied as moot Movant's Motion for Judicial Review of FOIA (Document No. 225), denied Movant's Motions asserting that Ms. Stevens was not qualified to represent the United States (Document Nos. 227, 249, 252, and 258), and recommended that the District Court deny Movant's Motion to Dismiss Indictment for Violation of the Federal Speedy Trial Act (Document No. 247). (Id., Document No. 271.)

         On January 14, 2013, Movant filed a pro se Motion for Ineffective Assistance of Counsel (Id., Document No. 273.) On January 15, 2013, the United States filed a “Motion to Dismiss Without Prejudice Counts Four, Five, and Six of the Second Superseding Indictment.” (Id., Document No. 275.) By Order entered on January 16, 2013, District Judge Berger granted the United States' “Motion to Dismiss Without Prejudice Counts Four, Five, and Six of the Second Superseding Indictment.” (Id., Document No. 282.) By unpublished opinion entered on January 22, 2013, the Fourth Circuit denied Movant's petitions for a writ of prohibition seeking an order directing that his criminal case be dismissed. (Id., Document Nos. 291, 292, and 293.) During the Detention Hearing conducted on January 23, 2013, Movant filed the following pro se Motions: (1) Waiver of Attorney and Motion to Proceed Pro se; (2) “Motion to Appoint Another Counsel Due to Conflict of Interest and That a Client and Attorney Relationship Cannot be Established;” (3) “Motion for Government/SAUSA Stevens to Produce Further Evidence of Enforce Letters and Appointment Affidavits;” (4) “Motion to Compel Attorney/Government to Disclose Evidence Favorable to Defendant Such as Laws and Statutes;” (5) “Motion to Suppress Evidence and Impeach SAUSA;” (6) “Motion for Defense Attorney Greg J. Campbell to Provide to this Petitioner a Copy of Any and All Plea Bargains Provided by SAUSA Debbie Stevens;” (7) “Motion for Disclosure of Agreements Between Government and Government Witnesses;” (8) “Motion to Produce All Names and Addresses of Persons Expected to be Called as Witnesses;” (9) “Motion to Require the Government to Reveal Any Agreement, Concession, and Grant Immunity;” (10) “Motion to Represent Pro se;” (11) “Motion for Interlocutory Appeal on Motion for Judicial Review of FOIA;” and (12) “Motion to Subpoena Witnesses and Records and Character Witnesses.” (Id., Document No. 297 - 308, 310.) After hearing arguments from Movant, Magistrate Judge VanDervort denied Movant's Motion for Ineffective Assistance of Counsel (Document No. 273). (Id., Document No. 310.) By Order entered on January 24, 2013, District Judge Berger denied Movant's pro se “Motion for Interlocutory Appeal on Motion for Judicial Review of FOIA” (Document No. 307). (Id., Document No. 312.) On January 24, 2013, Movant filed his pro se Motion to Continue Trail. (Id., Document No. 315.)

         On January 25, 2013, Movant pled guilty to one count of Threatening to Kidnap and Assault a Federal Officer in violation of 18 U.S.C. § 115(a)(1)(B) (Count One). (Id., Document Nos. 320 - 322.) By Order entered on the same day, Magistrate Judge VanDervort denied as moot Movant's pending pro se Motions (Document Nos. 297 - 307). (Id., Document No. 324.) On February 19, 2013, Movant filed his pro se “Motion to Vacate Plea Bargain or Get a More Definite State of Stevens SAUSA Appointment.” (Id., Document No. 339.) By Order entered on the same day, District Judge Berger denied Movant's foregoing pro se Motion. (Id., Document No. 340.) On March 8, 2013, Movant filed a “Declaration” stating that the letter her wrote to the federal officer was merely a hoax. (Id., Document No. 351.) A Presentence Investigation Report was prepared. (Id., Document No. 382.) The District Court determined Movant had an Base Offense Level of 12, and a Total Offense Level of 24, the Court having applied the following: A six-level enhancement pursuant to U.S.S.G. § 3A1.2(b); A two-level enhancement pursuant to U.S.S.G. § 3C1.1 for obstruction of justice; and An enhancement to an adjusted offense level of 24 pursuant to U.S.S.G. § 4B1.1 because Movant met the criteria for career offender status. (Id., pp. 27 - 28.) The District Court sentenced Movant on May 23, 2013, to serve a 120-month term of incarceration to be followed by a three-year term of supervised release.[1] (Id., Document Nos. 380.) The District Court further imposed a $100 special assessment. (Id.)

         On May 31, 2013, Movant filed a Notice of Appeal. (Id., Document No. 383.) In his appeal, Movant argued as follows: (1) The District Court erred in denying Movant credit for acceptance of responsibility under the Sentencing Guidelines; (2) The Magistrate Judge erred in denying Movant's motions seeking the disqualification of the Special Assistant United States Attorney; and (3) The District Judge was not neutral or impartial. (Id., Document No. 414.); United States v. Riggleman, 544 Fed.Appx. 175 (4th Cir. 2013). On October 24, 2013, the Fourth Circuit Court of Appeals affirmed in part and dismiss in part Movant's appeal. Id. Specifically, the Fourth Circuit (1) dismissed Movant's challenge to his sentence after determining that Movant's appeal waiver was knowingly and intelligently; (2) dismissed Movant's challenge to the Magistrate Judge's decision after determining that Movant waived appellate review of this issue by failing to appeal the Magistrate Judge's decision to the District Court; and (3) affirmed the District Court's decision to the extent Movant argued that the District Court was not neutral or impartial. Id. The United States Supreme Court denied Movant's petition for writ of certiorari on March 10, 2014. Riggleman v. United States, ___ U.S. ___, 134 S.Ct. 1525, 188 L.Ed.2d 458 (2014).

         B. Section 2255 Motion:

         On January 21, 2014, Movant, acting pro se, filed his instant “Writ of Habeas Corpus 28 § 2255” and “Amended Petition to 28 § 2255 Habeas Corpus.”[2] (Civil No. 5:14-03232, Document No. 422 and 423.) As grounds for habeas relief, Movant argues he is initial Section 2255 Motion as follows: (1) Involuntary plea; (2) Ineffective assistance of counsel; (3) Violation of his right to due process; (4) Violation of his Sixth Amendment right to confront witnesses against him; (5) Actual innocence; and (5) Improperly determined to be a career offender under the United States Sentencing Guidelines. (Id.)

         On January 31, 2014, Movant filed his “Writ for Habeas Corpus 28 U.S.C. § 2255” asserting nearly identical claims as asserted in his “Amended Petition to 28 § 2255 Habeas Corpus” (Document No. 422). (Id., Document No. 426.) On March 7, 2014, Movant filed his second Amended Section 2255 Motion. (Id., Document No. 437.) In his Amended Section 2255 Motion, Movant appears to argue that Attorney Kim Mann, S. Mason Preston, and Greg Campbell were ineffective in failing to pursue or adopt his pro se motions. (Id., pp. 1 - 4.) Next, Movant complains that Mr. Campbell was ineffective when he did “nothing but agree with the court when the judge denied this petitioner the acceptance of responsibility.” (Id., pp. 2 and 13.) Movant then continues to assert similar arguments as those set forth in his prior Section 2255 Motions. (Id., pp. 5 - 14.)

         On May 5, 2014 and July 11, 2014, Movant filed Motions for Default Judgment. (Id., Document Nos. 442 and 443.) In support, Movant argues that the United States has not responded to his Section 2255 Motions and “it has been over a period of 90 days from the time of service.” (Id.) Thus, Motion requests that he be released from confinement. (Id.)

         On October 23, 2015, Movant filed his third Amended Section 2255 Motion and Exhibits in Support. (Id., Document No. 455.) First, Movant argues that he was improperly classified as a career offender based upon the recent Johnson decision. (Id., pp. 1 - 5.) Movant continued to assert similar argues as those set forth in his prior Section 2255 Motions. (Id.) By Order entered on June 14, 2016, the Court appointed the Federal Public Defender to represent Movant to determine whether Movant may qualify for relief under Section 2255 in light of Johnson “and to present any petitions, motions, or applications relating thereto to the Court for disposition.”[3] (Id., Document No. 461.) By Order entered on August 12, 2016, the undersigned directed appointed counsel to file any supplemental brief in support of Movant's Section 2255 Motion by September 2, 2016, and directed the United States to file its Answer by September 30, 2016. (Id., Document No. 469.)

         On September 12, 2016, following the granting of an extension of time, Movant, by court-appointed counsel, Federal Public Defender Christian M. Capece and Assistant Federal Public Defender Rachel E. Zimarowski, filed his “Supplemental Memorandum in Support of Motion to Correct Sentence Under 28 U.S.C. § 2255.” (Id., Document No. 472.) In support of his Motion, Movant alleges that he is entitled to relief based upon the United States Supreme Court's decision in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). (Id.) Movant argues that under Johnson, Movant “is no longer a career offender because his conviction for threatening a federal official and his three prior convictions for mailing threatening communications and burglary no longer qualify as crimes of violence under any portion of the career definition.” (Id.) In support, Movant explains that in Johnson, the Supreme Court held that the residual clause of the Armed Career Criminal Act [“ACCA”] was unconstitutionally vague. (Id.) Movant, therefore, argues that “[i]t follows that the identical residual clause in the career offender provision, U.S.S.G. § 4B1.2(a)(2), is also void for vagueness.” (Id.) Thus, Movant concludes that his convictions do not trigger the application of the Section 4B1.1 career offender enhancement. (Id.) Movant argues that his convictions do not qualify as crimes of violence under the enumerated offenses or the force clause of the career offender provision. (Id.) Movant, therefore, contends that “in light of Johnson, [he] no longer qualifies as a career offender, and his current sentence violates due process of law in violation of 28 U.S.C. § 2255(a).” (Id.)

         On November 7, 2016, the United States filed its Response to Movant's Section 2255 Motions. (Id., Document No. 476.) First, the United States argues that Movant “has the burden of proving that he is entitled to resentencing based on the Johnson claims in his § 2255 Motion.” (Id., pp. 12 - 14.) The United States next argues that as to Movant's Johnson and career offender claims, such should be dismissed based upon the following: (1) Movant's plea agreement knowingly and voluntarily waived collateral attack of his sentence. (Id., pp. 15 - 19.); (2) Movant's Johnson-related claims were not timely filed and his § 2255 cannot be amended (Id., pp. 19 - 30); (3) Movant's “new claims are a successive motion” (Id., pp. 30 - 31.); and (4) Movant “procedurally defaulted his claims and has not demonstrated good cause to excuse his default” (Id., pp. 31 - 33.). Fourth, the United States argues that Johnson does not apply on collateral review to Guideline issues. (Id., pp. 33 - 39.) Fifth, the United States argues that Movant crimes are “crimes of violence.” (Id., pp. 39 - 65.) Finally, as to Movant's remaining claims that are unrelated to Johnson, the United States argues as follows: (1) Movant “has waived his right to collaterally attack his conviction and sentence” (Id., pp. 67 - 70.); (2) Movant's “voluntary waiver and plea waives all claims relating to non-jurisdiction error” (Id., pp. 70 - 71.); (3) Movant's “claims raised on appeal have already been adjudicated, and failure to bring his remaining claims on direct appeal waives those claims” (Id., pp. 72 - 74.); and (4) Movant “did not received ineffective assistance of counsel” (Id., pp. 74 - 82.); and (5) Movant “cannot now raise claims of any alleged constitutional errors regarding any alleged violation of defendant's due process rights” (Id., pp. 82 - 83.).

         As Exhibits, the United States attaches the following: (1) A copy of the transcripts from Movant's Sentencing Hearing conducted on May 23, 2013, in the underlying criminal action (Id., Document No. 476-1.); (2) A copy of Movant's “Opening Brief of Appellant” as filed by Mr. Campbell in the Fourth Circuit Court of Appeals (Id., Document No. 476-2.); (3) A copy of a letter from the United States Supreme Court stating that Movant's petition for writ of certiorari had been denied as to the underlying criminal action (Id., Document No. 476-3.); (4) A copy of the transcripts from Movant's Plea Hearing conducted on January 25, 2013 in the underlying criminal action (Id., Document No. 476-4.); (5) A copy of Movant's Indictment as filed in the Southern District of West Virginia in Case No. 2:04-cr-0048 (Id., Document No. 476-5.); (6) A copy of Movant's signed “Written Plea of Guilty” as filed in the Southern District of West Virginia in Case No. 2:04-cr-00048 (Id., Document No. 476-6.); (7) A copy of Movant's Plea Agreement as entered in the Southern District of West Virginia in Case No. 2:04-cr-00048 (Id., Document No. 476-7.); (8) A copy of the transcripts from Movant's Plea Hearing as conducted in the Southern District of West Virginia on June 24, 2004 in Case No. 2:04-cr-00048 (Id., Document No. 476-8.); (9) A copy of Movant's Indictment as filed in the Northern District of West Virginia in Case No. 2:06-cr-23 (Id., Document No. 476-8); and (10) A copy of a letter from the United States' Attorney Office regarding Movant' plea of guilty in the Northern District of West Virginia in Case No. 2:06-cr-23 (Id., Document No. 476-10.).

         On February 22, 2017, Movant filed his pro se “Amended to Counterclaim of Petitioner's claim of the Gov't Counterclaim of Petitioner Habeas Corpus.” (Id., Document No. 486.) Movant concludes that result of the proceeding would have been different if Mr. Campbell “would have adopted all of the pro se motions filed by this petitioner as requested and if counsel Greg Campbell would have researched the letter that was sent to Judge Berger, filed 1/28/13, Document No. 329.” Next, Movant continues to contend that his underlying offense was not eligible for the career offender enhancement and he was improperly denied a sentencing reduction for acceptance of responsibility. (Id.)

         On the same day, Movant filed his pro se “Counter Response to the U.S. Gov't Response.” (Id., Document No. 487.) First, Movant argues the United States failed to explain why a SAUSA was necessary for his prosecution. (Id.) Movant continues to argue that he was denied due process because he was never allowed to challenge the assignment of an SAUSA to his case. (Id.) Next, Movant contends that he is innocent of the underlying offense because the letters he mailed were only a hoax. (Id.) Third, Movant argues that the Court erred in denying him a sentencing reduction for acceptance of responsibility where Movant pled guilty. (Id.) Fourth, Movant contends that the Court erred in sentencing Movant as a career offender under the U.S.S.G. (Id.) Fifth, Movant argues that his waiver of appeal “did not waive the right to a habeas 2255 when the Judge is impartial, and his attorney did not inform me or advise me correctly.” (Id.) Movant further argues that he pled guilty to the “crime, not the enhancement.” (Id.) Sixth, Movant states that he is “fighting this case saying that the plea bargain was legal, but the added enhancement should not have even came into play.” (Id.) Seventh, Movant continues to argue that District Judge Berger was “very impartial.” (Id.) Finally, Movant continues to argue that Mr. Campbell was ineffective in failing to adopt his pro se motions. (Id.)

         Movant, by counsel, filed his Reply concerning his Johnson claim on February 22, 2017. (Id., Document No. 488.) First, Movant asserts that he “has no burden of production or persuasion to show that the District Court previously relied upon the residual clause in U.S.S.G. § 4B1.2 in order to obtain 28 U.S.C. § 2255 relief from an unlawfully imposed sentence.” (Id., pp. 1 - 5.) Second, Movant argues that the “waiver provision of [Movant's] plea agreement does not bar him from seeking relief under Johnson because a sentence imposed in an unconstitutional manner is outside the scope of the waiver.” (Id., pp. 5 - 8.) Third, Movant contends that his “Johnson claim is timely under 28 U.C.S. § 2255(f)(3).” (Id., pp. 8 - 10.) Fourth, Movant states that he “meet the Reed v. Ross cause and prejudice standard and his motion is not procedurally defaulted.” (Id., pp. 10 - 12.) Fifth, Movant claims that his “convictions for threatening a federal official and mailing threatening communications no longer qualify as crimes of violence under the Guidelines.” (Id., pp. 13 - 21.)

         On April 5, 2018, Movant filed his pro se Motion for Voluntary Dismissal. (Id., Document No. 496.) In support, Movant states that his “motion is mainly due to the fact that there is a Black Judge presiding over this case and I'm a very racist white man.” (Id.) Movant further appears to acknowledge that he is not entitled to relief under Johnson. (Id.) Finally, Movant continues to argue that he was subjected to ineffective assistance of counsel. (Id.) Movant, however, states that he is “sure” his ineffective assistance of counsel claim will fail due to bias by the District Judge. (Id.)

         ANALYSIS

         The relevant portion of Section 2255 provides as follows:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

         In order to be cognizable under Section 2255, claims based on other than constitutional or jurisdictional grounds must present exceptional circumstances that justify permitting a collateral attack. Stated another way, the alleged error must amount to “a fundamental defect which inherently results in a complete miscarriage of justice” or “an omission inconsistent with the rudimentary demands of fair procedure.” Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). Section 2255 is not a substitute for direct appeal. United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Accordingly, errors warranting a reversal on direct appeal will not necessarily support a collateral attack. Knight v. United States, 37 F.3d 769, 772 (1st Cir.1994). See United States v. Addonizio, 442 U.S. 178, 184, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979). Failure to raise an issue presented in sentencing on direct appeal which is non-constitutional in nature amounts to a waiver of the right to contest the issue in Section 2255 proceedings. See United States v. Emanuel, 869 F.2d 795 (4th Cir. 1989).

         With respect to issues which are constitutional in nature, absent a showing of good cause for and prejudice from failing to appeal as may be shown by a defendant in criminal proceedings, Section 2255 is no substitute, and the failure precludes Section 2255 review. Theodorou v. United States, 887 F.2d 1336, 1339-40 (7th Cir. 1989)(“[A]bsent a showing of cause and prejudice, a defendant is barred from raising any constitutional challenge in a section 2255 proceeding which could have been raised on direct appeal.”); See also United States v. Maybeck, 23 F.3d 888, 891 (4th Cir. 1994), cert. denied, 517 U.S. 1161, 116 S.Ct. 1555, 134 L.Ed.2d 657 (1996). The standard is conjunctive. As a general matter, therefore, movants must show good cause for and prejudice from their failure to raise any constitutional issues advanced under Section 2255 on direct appeal. See Theodorou, supra, 887 F.2d at 1340. Constitutional claims of ineffective assistance of counsel are the exception. They are more properly raised in Section 2255 proceedings and not on direct appeal. United States v. Richardson, 195 F.3d 192 (4th Cir. 1999), cert. denied, 528 U.S. 1096, 120 S.Ct. 837, 145 L.Ed.2d 704 (2000).

         Furthermore, a movant may not reassert a claim decided on direct review. In Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir.)(per curiam), cert. denied, 429 U.S. 863, 97 S.Ct. 169, 50 L.Ed.2d 142 (1976), the Court held that a defendant “will not be allowed to recast, under the guise of a collateral attack, questions fully considered [on appeal].” An exception exists, however, when there has been an intervening change in the law which justifies consideration of a prior determination. See Davis v. United States, 417 U.S. 333, 342, 94 S.Ct. 2298, 2303, 41 L.Ed.2d 109 (1974).

         1. Movant's Pro Se Motions for Default Judgment:

         On May 5, 2014 and July 11, 2014, Movant filed Motions for Default Judgment. (Id., Document Nos. 442 and 443.) In support, Movant argues that the United States has not responded to his Section 2255 Motions and “it has been over a period of 90 days from the time of service.” (Id.) Thus, Motion requests that he be released from confinement. (Id.)

         The United States Supreme Court has adopted Rules Governing Section 2255 Proceedings. Rule 4 of the Rules Governing Section 2255 Proceedings provide that if a Section 2255 Motion is not dismissed upon preliminary review, the Court “must order the United States Attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.” Rule 12 of the Rules Governing Section 2255 Proceedings for the United States District Courts provides that the Federal Rules of Civil Procedure, to the extent that they are not inconsistent with the habeas rules, may be applied to Section 2255 proceedings. Rule 55 of the Federal Rules of Civil Procedures provide that “default judgment may be entered against the United States . . . only if the claimant establishes a claim or right by evidence that satisfies the court.” Fed.R.Civ.P. 55(d). Thus, the district court must make a finding regarding the merits of the underlying claim. Borzeka v. Heckler, 739 F.2d 444, 446 (9th Cir. 1984); Lee v. Federal Emergency Mgmt. Agency, 2010 WL 1027124, * 7 (S.D.W.Va. Feb. 26, 2010)(“The mere failure of an agency of the United States to respond . . . does not suffice to establish a claim or right to relief.”), recommendation adopted, 2010 WL 1027050 (S.D.W.Va. March 17, 2010)(J. Faber).

         The undersigned declines to apply default judgment procedures to the above habeas proceedings. “There is no provision in the Rules Governing Section 2255 Proceedings for default judgments against respondents for missing response deadlines, and given the sui generis nature of such proceedings and the public interest involved in section 2255 cases, it would be improper to enter default judgment in favor of a state or federal prisoner based on a missed deadline, especially . . . where [the] petitioner has not been prejudiced . . .” United States v. Demelio, 2009 WL 145949, * 1 (W.D.Pa. Jan. 21, 2009); also see United States v. Manriques, 2013 WL 5592191 (M.D. N.C. Oct. 10, 2013)(declining to apply default judgment to Section 2255 proceedings); United States v. Scantland, 2010 WL 6571943, * 4 (E.D.Mich. Dec. 7, 2010)(“Unlike an ordinary civil case, a habeas corpus proceeding implicates interests beyond those of the parties, and thus default judgment is inappropriate.”); Mooney v. United States, 2009 WL 2929335, * 4 (D.S.C. Sept. 8, 2009)(“[C]ourts do not enter default judgments in favor of habeas petitioners without reaching the merits of the claim as a matter of policy due to the risk of releasing prisoners who have been duly convicted and the costs involved with retrial.”). Furthermore, Movant is not entitled to default judgment even assuming Rule 55 could apply to the above habeas proceedings. At the time of Movant's filing of the above Motions for Default, the United States had not yet been ordered by the Court to file a response to Movant's Section 2255 Motions. Thus, the United States has not failed to properly respond to Movant's Section 2255 Motions. Accordingly, the undersigned respectfully recommends that Movant's Motions for Default be denied.

         2. Movant's Pro se Motion for Voluntary Dismissal:

         Federal Rule of Civil Procedure 41(a)(1)(A)(i) provides that a Movant may voluntarily dismiss an action without a Court Order by filing “a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment[.]” Rule 41(a)(1)(B) states in pertinent part, as follows:

Unless the notice of dismissal or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal - or state - court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.

         Rule 41(a)(2) of the Federal Rules of Civil Procedure provides that “[e]xcept as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper.” The purpose of the Rule respecting voluntary dismissal “is freely to allow voluntary dismissals unless the parties will be unfairly prejudiced.” Davis v. USX Corp., 819 F.2d 1270, 1273 (4th Cir. 1987). “A plaintiff's motion under Rule 41(a)(2) should not be denied absent substantial prejudice to the defendant.” Andes v. Versant Corp., 788 F.2d 1033, 1036 (4th Cir. 1986). It is well established that prejudice to the defendant does not result from the prospect of a second lawsuit. See Ellett Brothers, Inc. v. U.S. Fidelity & Guaranty Co., 275 F.3d 384, 388 (4th Cir. 2001); also see Vosburgh v. Indemnity Ins. Co. of North America, 217 F.R.D. 384, 386 (S.D.W.Va. Sep. 12, 2003). In considering a Motion under Rule 41(a)(2), the District Court should consider the following relevant, but non-dispositive, factors: “(1) the opposing party's effort and expense in preparing for trial; (2) excessive delay or lack of diligence on the part of the movant; (3) insufficient explanation of the need for a dismissal; and (4) the present stage of the litigation, i.e., whether a motion for summary judgment is pending.” Id. These factors are not exhaustive, and no factor should be given weight over another. Gross v. Spies, 133 F.3d 914 (4th Cir. 1998)(citing Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir. 1997).

         In consideration of the above factors, the undersigned finds that Movant's Motion for Voluntary Dismissal should be denied. In consideration of the first and fourth factors, the undersigned notes the United States has filed a Response to Movant's Section 2255 Motions. The record supports a finding that the United States has spent a considerable amount of time and expense on this case. As set forth above, Movant asserts numerous grounds for relief. The United States addressed each ground in its lengthy Response totaling 85 pages. (Civil Action 5:14-03232, Document No. 476.) Thus, there has been extensive preparation by the United States in the above case. At the present stage of the litigation, the undersigned finds that the United States would be substantially prejudiced by the voluntary dismissal of Movant's Section 2255 Motions.

         Considering the second factor, the undersigned notes that there has been no excessive delay or lack of diligence on the part of Movant. Considering the third factor, Movant has provided an insufficient explanation of the need for a dismissal. Movant's request for dismissal is based upon racist remarks. (Civil Action No. 5:14-03232, Document No. 496.) Movant speculates that his Section 2255 action will be unsuccessful due to the District Judge's alleged bias against Movant. As stated below, Movant's conclusory allegations of bias by the District Judge is unsupported and without merit. Based upon the foregoing, the undersigned respectfully recommends that Movant's Motion requesting voluntary dismissal of this action be denied.

         3. Johnson Claim:

         In the instant case, Movant argues that he is entitled to relief based upon Johnson. In Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), the United States Supreme Court held that the “residual clause” of the Armed Career Criminal Act [“ACCA”] was unconstitutionally vague and “imposing an increased sentence under the residual clause of the [ACCA] violates the Constitution's guarantee of due process.” Johnson, ___ U.S. At ___, 135 S.Ct. at 2555-63. The ACCA provides for enhanced penalties for those with three qualifying prior felony convictions for either serious drug offenses or “violent felonies.” The ACCA defines a “violent felony” as a crime punishable by imprisonment for a term exceeding one year “ that - - (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii)(emphasis added). The italicized portion above is known as the ACCA's “residual clause.” The Supreme Court determined the ACCA's “residual clause” to be ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.